Archive | June, 2012

Nino! Now Playing at the Schubert Theater

29 Jun

In case you missed the whole Justice Scalia series, here’s a recap.

Prologue: I’ve Got a Crush on You

Scalia’s mission, by contrast, is to make everything come out wrong. A Scalia opinion, to borrow a phrase from New Yorker writer Margaret Talbot, is “the jurisprudential equivalent of smashing a guitar on stage.” Scalia may have once declared the rule of law the law of rules—leading some to mistake him for a stereotypical conservative—but rules and laws have a particular frisson for him. Where others look to them for stabilizing checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Where others seek security, Scalia seeks sublimity. Rules and laws make life harder, and harder is everything. “Being tough and traditional is a heavy cross to bear,” he tells one reporter. “Duresse oblige.”

Act One: Diva of Disdain

Scalia’s conservatism, it turns out, is less a little platoon than a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance: his parents had only one child, and his mother-in-law often complained about having to drive miles and hours in search of the one true church. “Why don’t you people ever seem to live near churches?” she would ask Scalia and his wife.  It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.

Act Two: American Nietzsche

Left unresolved, however, the contradiction reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power—reflecting nothing (not even the will or standing of their makers) but the flat surface of their locutionary meaning—to which we must nevertheless submit; and a belief in rules, zealously enforced, as the divining rod of our ineradicable inequality. Those who make it past these blank and barren gods are winners; everyone else is a loser.

Act Three: Affirmative Action Baby

Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.

Affirmative Action Baby

28 Jun

This is last of my 3-part series on Justice Scalia, Diva of Disdain.  Part 1 is here; Part 2 is here.  The introduction is here.

In the United States, Tocqueville observed, a federal judge “must know how to understand the spirit of the age.” While the persona of a Supreme Court Justice may be “purely judicial,” his “prerogatives”—the power to strike down laws in the name of the Constitution—“are entirely political.” If he is to exercise those prerogatives effectively, he must be as culturally nimble and socially attuned as the shrewdest pol.

How then to explain the influence of Scalia? Here is a man who proudly, defiantly, proclaims his disdain for “the spirit of the age”—that is, when he is not embarrassingly ignorant of it. (When the Court voted in 2003 to overturn state laws banning gay sex, Scalia saw the country heading down a slippery slope to…masturbation.) In 1996, he told an audience of Christians that “we must pray for the courage to endure the scorn of the sophisticated world,” a world that “will not have anything to do with miracles.” We have “to be prepared to be regarded as idiots.” In a dissent from that same year, Scalia declared, “Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.” As Maureen Dowd wrote, “He’s so Old School, he’s Old Testament.”

And yet, according to Elena Kagan, the newest member of the Court, appointed by Obama in 2010, Scalia “is the justice who has had the most important impact over the years on how we think and talk about the law.” John Paul Stevens, the man Kagan replaced and until his retirement the most liberal Justice on the Court, says that Scalia has “made a huge difference, some of it constructive, some of it unfortunate.” Scalia’s influence, moreover, will in all likelihood extend into the future. “He is in tune with many of the current generation of law students,” observes Ruth Bader Ginsburg, another Court liberal. Give me a law student at an impressionable age, Jean Brodie might have said, and she is mine for life.

It is not Scalia’s particular positions that have prevailed on the Court. Indeed, some of his most famous opinions—against abortion, affirmative action, and gay rights; in favor of the death penalty, prayer in school, and sex discrimination—are dissents. (With the addition of John Roberts to the Court in 2005 and Samuel Alito in 2006, however, that has begun to change.) Scalia’s hand is more evident in the way his colleagues—and other jurists, lawyers, and scholars—make their arguments.

For many years, originalism was derided by the left. As William Brennan, the Court’s liberal titan of the second half of the twentieth century, declared in 1985: “Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.” Against the originalists, Brennan insisted that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Just a decade later, however, the liberal Laurence Tribe, paraphrasing the liberal Ronald Dworkin, would say, “We are all originalists now.” That’s even truer today. Where yesterday’s generation of constitutional scholars looked to philosophy—Rawls, Hart, occasionally Nozick, Marx, or Nietzsche—to interpret the Constitution, today’s looks to history, to the moment when a word or passage became part of the text and acquired its meaning. Not just on the right, but also on the left: Bruce Ackerman, Akhil Amar, and Jack Balkin are just three of the most prominent liberal originalists writing today.

Liberals on the Court have undergone a similar shift. In his Citizens United dissent, Stevens wrote a lengthy excursus on the “original understandings,” “original expectations,” and “original public meaning” of the First Amendment with regard to corporate speech. Opening his discussion with a dutiful sigh of obligation— “Let us start from the beginning”—Stevens felt compelled by Scalia, whose voice and name were present throughout, to demonstrate that his position was consistent with the original meaning of freedom of speech.

Other scholars and jurists have helped bring about this shift, but it is Scalia who has kept the flame at the highest reaches of the law. Not by tact or diplomacy. Scalia is often a pig, mocking his colleagues’ intelligence and questioning their integrity. Sandra Day O’Connor, who sat on the Court from 1981 to 2006, was a frequent object of his ridicule and scorn. Scalia characterized one of her arguments as “devoid of content.” Another, he wrote, “cannot be taken seriously.” Whenever he is asked about his role in Bush v. Gore (2000), which put George W. Bush in the White House through a questionable mode of reasoning, he sneers, “Get over it!” Nor, contrary to his camp followers, has Scalia dominated the Court by force of his intelligence. (“How bright is he?” exhales one representative admirer.) On a Court where everyone is a graduate of Harvard, Yale, or Princeton, and Ivy League professors sit on either side of the bench, there are plenty of brains to go around.

Several other factors explain Scalia’s dominance of the Court. For starters, Scalia has the advantage of a straightforward philosophy and nifty method. While he and his army march through the archives, rifling through documents on the right to bear arms, the commerce clause, and much else, the legal left remains “confused and uncertain,” in the words of Yale law professors Robert Post and Reva Siegel, “unable to advance any robust theory of constitutional interpretation” of its own. In an age when the left lacks certainty and will, Scalia’s self-confidence can be a potent and intoxicating force.

Second, there’s an elective affinity, even a tight fit, between the originalism of duresse oblige and Scalia’s idea of the game. And that is Scalia’s vision of what the good life entails: a daily and arduous struggle, where the only surety, if we leave things well enough alone, is that the strong shall win and the weak shall lose. Scalia, it turns out, is not nearly the iconoclast he thinks he is. Far from telling “people what they don’t like to hear,” as he claims, he tells the power elite exactly what they want to hear, that they are superior and that they have a seat at the table because they are superior. Tocqueville, it seems, was right after all. It is not the alienness but the appositeness of Justice Scalia, the way he reflects rather than refracts the spirit of the age, that explains, at least in part, his influence.

But there may be one additional, albeit small and personal, reason for Scalia’s outsized presence in our Constitutional firmament. And that is the patience and forbearance, the general decency and good manners, his liberal colleagues show him. While he rants and raves, smashing guitars and dive-bombing his enemies, they tend to respond with an indulgent shrug, a “that’s just Nino,” as O’Connor was wont to say.

The fact may be small and personal, but the irony is large and political. For Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.

Ever since the 1960s, it has been a commonplace of our political culture that liberal niceties depend upon conservative not-so-niceties. A dinner party on the Upper West Side requires a police force that doesn’t know from Miranda, the First Amendment a military that doesn’t know from Geneva. That, of course, is the conceit of 24 (not to mention a great many other Hollywood productions like A Few Good Men ). But that formulation may have it exactly backward: without his more liberal colleagues indulging and protecting him, Scalia—like Jack Bauer—would have a much more difficult time. The conservatism of duresse oblige depends upon the liberalism of noblesse oblige, not the other way around. That is the real meaning of Justice Scalia.

Adolph Reed Speaks Truth on Wisconsin

27 Jun

Over at The Nation, Adolph Reed weighs in on the great debate about Wisconsin. (His piece, as of this writing, is second from the top, just after Bill Fletcher’s and Jane McAlevey’s.) Adolph, whose credentials as a thinker and activist I assume no one (at least no one in her right mind) would question, has got some choice words of wisdom that I hope we’ll all heed.

Many observers have noted that the Madison occupation depended on intense, aggressive, even extraordinary mobilization by unions, and not only unions in Wisconsin. That point has underscored the labor movement’s centrality to any mass action of that sort because it alone has the capacity – people and organizational and economic resources — to pull it off and sustain it. The other side of that coin, however, is that the intensity of effort required to sustain that kind of action could not be maintained indefinitely. It is too easy to imagine, as the numbers in Madison grew, that the mobilization had taken on a life of its own, that the People were rising. However, generating and sustaining that mass action required great commitment of effort and resources – effort and resources that weren’t going toward meeting other pressing needs and commitments.

Mass protest is not the end all and be all of political action. It does not necessarily mark going on the offensive or seizing political initiative; it can just as easily be the opposite – an act of desperation or an attempt to create a little space or breathing room to try to recover from a serious blow. It is only the fetish of the Spark that underwrites the default assumption that mass protest or street action equates with radicalization and expansion of the struggle. How many of us have ever really seen (i.e., not simply read or heard about – everybody tells that fish story) a protest action grow entirely on its own to a point where it overwhelms political opposition or converts into a new insurgency?

The tendency to scapegoat the labor movement for Walker’s most recent victory in Wisconsin – and, to be clear, that is what I see in Henwood’s, Rothschild’s and Kroll’s arguments – stems from frustration and desperation and, ironically, recognition, if only backhanded, of the fact that labor was the only element of the coalition challenging Walker with the material and organizational capacity to set and pursue a strategy. What other organized political forces could be identified in order to be blamed? This scapegoating not only rests on a naïvely formalist juxtaposition of street action and electoral action; it also feeds on a long-standing suspicion in many precincts of the post-Vietnam era left of a politics rooted in institutions in general and unions in particular. Gordon Lafer is correct that these criticisms misunderstand what unions are and how they operate as democratic structures, the realities of union leaders’ accountability to their members. I don’t need to reiterate that argument, which he makes very well. I would also commend Corey Robin’s blog posting offering a “Challenge to the Left” to consider what actually attempting to organize a constituency to support an unconventional program requires. For those who want to build a left, that’s the mindset of slow, steady, face-to-face base-building we need, not lurching from one self-gratifying but unproductive action to the next. The point of politics is after all, to resuscitate an old Maoist dictum, to unite the many to defeat the few. Our objective has to be to create that “many,” not merely assume it’s out there already.

Justice Scalia: American Nietzsche

27 Jun

This is Part 2 of my series on Justice Scalia, Diva of Disdain.  Part 1 is here; an introduction to the whole is here.

Like many originalists, Scalia claims that his jurisprudence has nothing to do with his conservatism. “I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws.” Yet he has also said that he learned from his teachers at Georgetown never to “separate your religious life from your intellectual life. They’re not separate.” Only months before Ronald Reagan nominated him to the Supreme Court in 1986, he admitted that his legal views were “inevitably affected by moral and theological perceptions.”

And, indeed, in the deep grammar of his opinions lies a conservatism that, if it has little to do with advancing the immediate interests of the Republican Party, has even less to do with averting the threats of judicial tyranny and judicial anarchy. It is a conservatism that would have been recognizable to Social Darwinists of the late nineteenth century, that mixes freely of the premodern and the postmodern, the archaic and the advanced. It is not to be found in the obvious places—Scalia’s opinions about abortion, say, or gay rights—but in a dissenting opinion about that most un-Scaliaesque of places, the golf course.

Casey Martin was a champion golfer (he’s now an ex-golfer) who because of a degenerative disease could no longer walk the eighteen holes of a golf course. After the PGA Tour refused his request to use a golf cart in the final round of one of its qualifying tournaments, a federal court issued an injunction, based on the Americans with Disabilities Act (ADA), allowing Martin to use a cart.

Title III of the ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

By the time the case reached the Supreme Court in 2001, the legal questions had boiled down to these: Is Martin entitled to the protections of Title III of the ADA? Would allowing Martin to use a cart “fundamentally alter the nature” of the game? Ruling 7–2 in Martin’s favor—with Scalia and Thomas in dissent—the Court said yes to the first and no to the second.

In answering the first question, the Court had to contend with the PGA’s claims that it was operating a “place of exhibition or entertainment” rather than a public accommodation, that only a customer of that entertainment qualified for Title III protections, and that Martin was not a customer but a provider of entertainment. The Court was skeptical of the first two claims. But even if they were true, the Court said, Martin would still be protected by Title III because he was in fact a customer of the PGA: he and the other contestants had to pay $3,000 to try out for the tournament. Some customers paid to watch the tournament, others to compete in it. The PGA could not discriminate against either.

Scalia was incensed. It “seems to me quite incredible,” he began, that the majority would treat Martin as a “‘custome[r]’ of ‘competition’” rather than as a competitor. The PGA sold entertainment, the public paid for it, the golfers provided it; the qualifying rounds were their application for hire. Martin was no more a customer than is an actor who shows up for an open casting call. He was an employee, or potential employee, whose proper recourse, if he had any, was not Title III of the ADA, which covered public accommodations, but Title I, which covered employment. But Martin wouldn’t have that recourse, admitted Scalia, because he was essentially an independent contractor, a category of employee not covered by the ADA. Martin would thus wind up in a legal no man’s land, without any protection from the law.

In the majority’s suggestion that Martin was a customer rather than a competitor, Scalia saw something worse than a wrongly decided opinion. He saw a threat to the status of athletes everywhere, whose talent and excellence would be smothered by the bosomy embrace of the Court, and also a threat to the idea of competition more generally. It was as if the Homeric rivals of ancient Greece were being plucked from their manly games and forced to walk the aisles of a modern boutique.

Games hold a special valence for Scalia: they are the space where inequality rules. “The very nature of competitive sport is the measurement,” he says, “of unevenly distributed excellence.” That inequality is what “determines the winners and losers.” In the noonday sun of competition, we cannot hide our superiority or inferiority, our excellence or inadequacy. Games make our unequal natures plain to the world; they celebrate “the uneven distribution of God-given gifts.”

In the Court’s transposition of competitor into customer, Scalia saw the forced entry of democracy (a “revolution,” actually) into this antique preserve. With “Animal Farm determination”—yes, Scalia goes there—the Court had destroyed our one and only opportunity to see how unequal we truly are, how unfairly God has chosen to bestow his blessings upon us. “The year was 2001,” reads the last sentence of Scalia’s dissent, “and ‘everybody was finally equal.’”

Like the Social Darwinists and Nietzsche, Scalia is too much a modernist, even a postmodernist, to pine for the lost world of feudal fixities. Modernity has seen too much flux to sustain a belief in hereditary status. The watermarks of privilege and privation are no longer visible to the naked eye; they must be identified, again and again, through struggle and contest. Hence the appeal of the game. In sports, unlike law, every day is a new day. Every competition is a fresh opportunity for mixing it up, for throwing our established hierarchies into anarchic relief and allowing a new face of supremacy or abjection to emerge. It thus offers the perfect marriage of the feudal and the fallible, the unequal and the unsettled.

To answer the second question—does riding in a golf cart “fundamentally alter the nature” of golf—the majority undertook a thorough history of the rules of golf. It then formulated a two-part test for determining whether riding in a cart would change the nature of golf. The dutifulness and care, the seriousness with which the majority took its task, both amused and annoyed Scalia.

It has been rendered the solemn duty of the Supreme Court of the United States . . . to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

Scalia is clearly enjoying himself here, but his mirth is a little mystifying. The ADA defines discrimination as

a failure to make reasonable modifications in the policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations that the entity provides.

Any determination of discrimination requires a prior determination about whether the “reasonable modification” would “fundamentally alter the nature” of the good in question. The language of the statute, in other words, compels the Court to inquire into and decide What is Golf.

But Scalia won’t have any of it. Refusing to be bound by the text, he prefers to meditate on the futility and fatuity of the Court’s inquiry. In seeking to discover the essence of golf, the Court is looking for something that does not exist. “To say that something is ‘essential,’” he writes, “is ordinarily to say that it is necessary to the achievement of a certain object.” But games “have no object except amusement.” Lacking an object, they have no essence. It’s thus impossible to say whether a rule is essential. “All are arbitrary,” he writes of the rules, “none is essential.” What makes a rule a rule is either tradition or, “in more modern times,” the edict of an authoritative body like the PGA.

In an unguarded moment, Scalia entertains the possibility of there being “some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game.” But he quickly pulls back from his foray into essentialism. No Plato for him; he’s with Nietzsche all the way.

It is difficult to reconcile this almost Rortyesque hostility to the idea of golf’s essence with Scalia’s earlier statements about “the very nature of competitive sport” being the revelation of divinely ordained inequalities. (It’s also difficult to reconcile Scalia’s indifference to the language of the statute with his textualism, but that’s another matter.) Left unresolved, however, the contradiction reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power—reflecting nothing (not even the will or standing of their makers) but the flat surface of their locutionary meaning—to which we must nevertheless submit; and a belief in rules, zealously enforced, as the divining rod of our ineradicable inequality. Those who make it past these blank and barren gods are winners; everyone else is a loser.

Tomorrow: How and why Scalia is the real affirmative action baby, and how liberals enable him.

Diva of Disdain: Justice Scalia in Three Parts

26 Jun

Thanks to his rant from the bench yesterday—about the Arizona immigration law, which the Supreme Court mostly struck down—Justice Scalia is back in the news. But where many on the left see Scalia as a partisan hack, who twists the Constitution into a pretzel to get the result he wants, I’m more impressed by the  underlying consistency of his jurisprudence. That’s not to say he’s never inconsistent, but hackery is not his main problem. But to see the problem, you have to have a better sense of the man and his vision.

In The Reactionary Mind, I devoted a chapter to that question. Last fall, I excerpted the introduction to that chapter. Given all the attention now being paid to Scalia, I thought I’d continue providing some excerpts.

So today I’m launching a three-part series. Part 1 below provides some biographical details. Part 2, which will appear tomorrow, provides a close reading of one of Scalia’s lesser known decisions. Part 3, which will appear on Thursday, steps back to assess the overall vision and its relationship to liberalism on the Court.

If you want to read the introduction to the chapter, which gives you more sense of the man and his vision, start here.

Antonin Scalia was born in Trenton, New Jersey, in March 1936, but he was conceived the previous summer in Florence, Italy. (His father, a doctoral student in romance languages at Columbia, had won a fellowship to travel there with his wife.) “I hated Trenton,” Scalia says; his heart belongs to Florence. A devotee of opera and hunting—“he loves killing unarmed animals,” observes Clarence Thomas—Scalia likes to cut a Medicean profile of great art and great cruelty. He peppers his decisions with stylish allusions to literature and history. Once upon a time, he enjoys telling audiences, he was too “fainthearted” an originalist to uphold the eighteenth century’s acceptance of ear notching and flogging as forms of punishment. Not anymore. “I’ve gotten older and crankier,” he says, ever the diva of disdain.

When Scalia was six, his parents moved to the Elmhurst section of Queens. His lifelong conservatism is often attributed to his strict Italian Catholic upbringing there; alluding to Burke, he calls it his “little platoon.” He attended Xavier High School, a Jesuit school in Manhattan, and Georgetown, a Jesuit university in Washington, D.C. In his freshman year at Georgetown, the senior class voted Senator Joseph McCarthy as the Outstanding American.

But Scalia comes to his ethnicity and religion with an attitude, lending his ideology a defiant edge. He claims he didn’t get into Princeton, his first choice, because “I was an Italian boy from Queens, not quite the Princeton type.” Later, after Vatican II liberalized the liturgy and practices of the Church, including his neighborhood church in suburban Washington, D.C., he insisted on driving his brood of seven children miles away to hear Sunday Mass in Latin. Later still, in Chicago, he did the same thing, only this time with nine children in tow. Commenting on how he and his wife managed to raise conservative children during the sixties and seventies—no jeans in the Scalia household—he says:

They were being raised in a culture that wasn’t supportive of our values, that was certainly true. But we were helped by the fact that we were such a large family. We had our own culture . . . . The first thing you’ve got to teach your kids is what my parents used to tell me all the time, “You’re not everybody else . . . . We have our own standards and they aren’t the standards of the world in all respects, and the sooner you learn that the better.”

Scalia’s conservatism, it turns out, is less a little platoon than a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance: his parents had only one child, and his mother-in-law often complained about having to drive miles and hours in search of the one true church. “Why don’t you people ever seem to live near churches?” she would ask Scalia and his wife.  It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.

In the 1970s, while teaching at the University of Chicago, Scalia liked to end the semester with a reading from A Man for All Seasons, Robert Bolt’s play about Thomas More. While the play’s antiauthoritarianism would seem at odds with Scalia’s conservatism, its protagonist, at least as he is portrayed by Bolt, is not. Literally more Catholic than the pope, More is a true believer in the law who refuses to compromise his principles in order to accommodate the wishes of Henry VIII. He pays for his integrity with his life.

Joan Biskupic, Scalia’s biographer, introduces this biographical tidbit with a revealing setup: “Yet even as Scalia in middle age was developing a more rigid view of the law, he still had bursts of idealism.” That “yet” is misplaced. Scalia’s rigidity is not opposed to his idealism; it is his idealism. His ultraconservative reading of the Constitution reflects neither cynicism nor conventionalism; orthodoxy and piety are, for him, the essence of dissidence and iconoclasm. No charge grieves him more than the claim, rehearsed at length in his 1995 Tanner Lectures at Princeton, that his philosophy is “wooden,” “unimaginative,” “pedestrian,” “dull,” “narrow,” and “hidebound.” Call him a bastard or a prick, a hound from hell or a radical in robes. Just don’t say he’s a suit.

Tomorrow: Justice Scalia vents his rage on a handicapped golfer, revealing his true inspiration is neither Catholicism nor the Constitution but Friedrich Nietzsche and Richard Rorty

Labor was once central to the liberal imagination; today, not so much.

22 Jun

While we’re all arguing about what went down in Wisconsin and about the state of the labor movement, I hope we can agree that the rights of labor are central to any notion of a decent and just society.  Sadly, that proposition remains controversial, and even liberals have retreated from it in recent decades.  (Which is why this post from liberal political theorist Elizabeth Anderson was so refreshing!)

In this must-read piece, Mark Ames details the sorry retreat of prominent human rights groups like Amnesty International, Human Rights Watch, and the ACLU from any real commitment to labor rights.  Ames doesn’t mention two excellent reports that the ACLU and Human Rights Watch did prepare on the rights of labor—The Rights of Employees and Unfair Advantage (and Human Rights Watch also authored this excellent report on Wal-Mart’s violation of labor rights).  But the publication dates of these reports—1984, 2000—only underscore Ames’s point. Labor was once central to the liberal imagination; today, not so much.

In Ames’s words:

Go to Amnesty International’s home page at On the right side, under “Human Rights Information” you’ll see a pull-down menu: “by topic.” Does labor count as a “Human Rights topic” in Amnesty’s world? I counted 27 “topics” listed by Amnesty International, including “Abolish the death penalty”, “Indigenous Peoples”, “ “Children and Human Rights” and so on. Nowhere do they have “labor unions” despite the brutal, violent experience of labor unions both here and around the world. It’s not that Amnesty’s range isn’t broad: For example, among the 27 topics there are “Women’s rights”, “Stop Violence Against Women” and “Sexual Orientation and Gender Identity”. There’s even a topic for “Business and Human Rights”—but nothing for labor.

Puzzled, I called Alex Edwards, Amnesty’s Media Relations guy in Washington DC, to ask him why labor unions didn’t rate important enough as a “topic” on Amnesty’s “list of topics.” Edwards was confused, claimed that he was totally unaware that there was a “list of topics” on Amnesty’s home page, and promised to get back to me. I haven’t heard back from him.

Check out the rest here.

What Might Have Been: One Report from Madison, Wisconsin

20 Jun

In all the post-mortems about what went down in Wisconsin, this comment on my blog from a union activist in Madison got lost in the shuffle.  I have no idea who this person is or if s/he is correct in his/her assessment. But it seemed worth posting here in full.

. . . . . . .

I’m a member of the Teaching Assistants’ Association. I was heavily involved during the actual occupation of the Capitol, and then gradually less so after we were kicked out. I was at the meeting of the Wisconsin South-Central Federation of Labor when it voted to endorse a general strike if the bill went through. It should be noted that the final version of the bill involved endorsing an “international” general strike, whatever the hell that would be.

Although, to be fair, since the leadership knew they didn’t have a strike fund or any advance work with any unions, they were only endorsing a strike in principle, I still thought I was on the set of a movie. Since, you know, the last general strike in the United States was in Minneapolis in 1934. I talked to a still-wet-behind-the-ears paid organizer for SCFL, and he told me that, indeed, there was serious talk about a general strike.

When things actually hit the fan, of course, it was only the directly-affected public-sector unions that had any real strike talk. In my own, undoubtedly the most radical, there was a hard core of activists who had been working around the clock on the occupation who favored going on strike. I was willing to be one of them, but it became pretty clear that we had no chance in hell of winning a strike vote. The primary problem was not our ”fat-cat” union bureaucrats (our officers actually don’t draw a union salary) but the bulk of our membership. Even among the people who showed up to our large and contentious general membership meetings there were many who strongly opposed our “teachouts,” in which we didn’t teach our classes on campus but sometimes made alternative arrangements to teach near the State Capitol. I imagine that among the much larger number who didn’t come to the meetings and didn’t participate in the teachouts, such opposition was even greater. Certainly, those members would never have voted for a formal walkout.

Even some of our progressive faculty were getting antsy about the continued teachouts, and, of course, there was a considerable public backlash against the wildcat sickouts that many teachers participated in, most notably members of MTI, the Madison teachers union.

Without knowing all the decision-making details within the big public-sector unions, I am still confident that there is no way that a grassroots groundswell for a strike was squelched by union bureaucrats and Democratic politicians. They might have tried (and likely failed) to squelch such a surge had it existed, but it was clear to the vast majority of those involved that we had already done pretty much all we could do and that there was not going to be any strike, let alone the fabled general strike, the chimera of the left.

It might be interesting to imagine what would have happened had there been some organized campaign to stop doing any other activism and start preparing for a mass public-sector strike. For those who think the recall was an overreach, you shouldn’t try to imagine what the backlash would have been against that.

Update (6/21, 8:30 am)

One commenter reminds us that the last general strike in the United States was in Oakland in 1946, not Minneapolis in 1934.

Whither Wisconsin: A Guide to the Perplexed (Left)

15 Jun

Gordon Lafer on how to think—and not think—about the Wisconsin recall:

After all, if the real problem was overpaid union bureaucrats, then radical unions like the Wobblies or United Electrical workers—unburdened by highly paid staff or Democratic politics—should be meeting greater success in organizing. But, of course, they are not. The problem is not what unions are doing; it’s the coercive power of employers.

Read the rest here.

A Solidarity of Strangers

8 Jun

My “Challenge to the Left” has provoked a fair amount of discussion and pushback (the latter mostly on Facebook and Twitter, as well as on email listserves, or so I’m told). Part of the problem with this discussion, to my mind, is that very few people have a real sense of what organizing entails. One of the ones who does have a sense is Jay Driskell, a talented young historian at Hood College. Jay offered some thoughts on my Facebook page, and I asked him to turn them into a blog post.  So here it is.

• • • • •

Since the defeat of Tuesday’s recall effort in Wisconsin, there has been a lot of debate over whether it was a good idea to hitch the energies of the February 2011 occupation of the State Capitol to the vehicle of electoral politics. Many have questioned the relationship between the labor movement and the Democratic Party and how that relationship—not to mention “union bosses”—tamps down worker militancy.

I’m sympathetic to that critique, but I’d like to offer another perspective.

In the weeks following the introduction of Walker’s bill stripping public workers of the right to organize, several unions affiliated with the South Central Federation of Labor voted to endorse a general strike should the state legislature pass Walker’s bill. Most folks I know in Wisconsin, however (none of them “labor bosses”), counseled against it.  Why?

Two reasons.

First, aside from a militant core of people willing to occupy the Capitol and face arrest (and those with the free time to attend seemingly endless meetings), most folks who would have had to participate in that strike were too scared of losing their jobs for something that might not have worked at all.  What the advocates of the general strike in Wisconsin were up against here were not “labor bosses” demobilizing otherwise radical workers but the same old thing that every organizer contends with: fear and hopelessness.

Overcoming that fear and hopelessness entails a good deal of organizing—that is, reaching out to strangers and artificially creating a solidarity that did not previously exist. It was the work of organizing that sustained the last fifteen months of mass mobilization. This work remains largely invisible to the armchair quarterbacks of the punditocracy. The relationships forged in the process of organizing a mass movement are easy to forget in the pain of losing a hard fought battle.

I learned this lesson as an organizer for the Graduate Employees and Students Organization (GESO), the union for graduate teachers and researchers at Yale University.

In 2003, we held an election supervised by the League of Women Voters, which we narrowly lost by a vote of 694 to 651. That election was my first experience of truly losing a battle that mattered to me, and it would have been easy to throw my hands up to say that it was the death knell for GESO, hole up in my ivory tower and write radical books about struggles long since over.  We had been fighting to get Yale to recognize our union since 1987: sixteen years later, we got rejected by a majority of our colleagues (including a few close friends, who later told me that they voted against the union.)

The reason I didn’t give up was because of what historian Michael Denning told us at the rally we held the morning of the election: the most radical thing a union can do is to forge solidarity among a group of folks whose companionship they didn’t choose.  By and large, we don’t choose our co-workers. They are chosen for us by the employer who hired us. We must build a community with them, whether we like them or not.

Hell, anyone can stick up for someone who thinks like themselves and looks like themselves. The real challenge is building a union or a movement alongside people who aren’t like you, who maybe make you uncomfortable and who maybe you don’t like. (And being a working-class kid who almost didn’t go to college and then wound up at Yale, there were plenty of people I didn’t like.)  At the same time, you have to ask these strangers to do something that probably scares them—and maybe they don’t like you all that much either.  Therein lies some of the most difficult—and some of the most important—work that unions do when they organize successfully.

In such a deeply divided state as Wisconsin, this forging of a solidarity among strangers ranks among the most important things unions can do. (Case in point, Wisconsin is the only state where I have been driven off the road by a pro-lifer.  My crime: a pro-woman, pro-choice bumper sticker).

I’d wager that during the recall election even getting some folks to vote for Barrett in redder parts of the state—to publicly come out against Walker—took an act of real courage.  They didn’t face guns, but they possibly faced the opposition of their fathers and mothers, husbands and wives, boyfriends and girlfriends, coworkers and bosses.  And, since almost nobody is born with that level of courage, someone had to reach out to that voter and build a relationship of solidarity, from which that person could draw the strength necessary to be brave enough to put a Barrett sticker on their car.

Ella Baker, one of the most talented civil rights organizers of the twentieth century, once said “strong people don’t need strong leaders.”  But, as Baker understood, strong people don’t exist in a vacuum.  People are made strong by their relationships.

Having once been a Republican (I come from a long line of Reagan Democrats), my special job in GESO was to organize those graduate students who were either libertarians or conservatives or who did not seem like likely candidates for mounting the barricades. This was a group of folks who did not necessarily like me all that much at first (some still don’t) but whose support we needed to get to a majority.

Week after week, I’d knock on their door and find them after they taught, show up to their parties (I can be a real pain in the ass!) and eventually we’d talk and keep talking. If we got through enough of our ideological disagreements, what remained at the heart of their opposition to the union was a fear of retribution by their advisors (whether those advisors were radical, liberal, or conservative didn’t seem to matter all that much).  And as people wrestled with this fear, the next question they faced was whether or not joining the union, signing a public petition, or going on strike was worth all that risk.  Fear and hopelessness.

I failed a lot.  But not always.   I met with one guy—still a good friend—every week for months and months before he finally signed his union card.  After he joined, it took me another six months to get him on the organizing committee and after that, he and I walked two picket lines together.

Another guy was a leftish libertarian type. It took me weeks and weeks to get him to even come to the strike vote.  Over the course of our conversations, he would get up, storm off, yell at me, and once he even threatened to hit me.  I never got him to vote yes – he showed up, loudly voted no, but he still went on strike.  And, when he did, he wrote on the biggest picket sign he could find: I VOTED NO.  I’M STILL ON STRIKE.

That’s solidarity—and that’s what scares the bosses.  And it’s an example that what matters is not always winning the argument, but building relationships of solidarity capable of overcoming the fear and hopelessness that prevent people from taking collective action.

The challenge here is to think about how you would get that person in your workplace, the one who lives down the street, or your pro-life, gun-toting red meat Republican brother-in law—in short the least likely candidates for radical collective action—and get that person to join you.  What would you say to that person? How would you move that person? Given the enormity of what we are up against, a whole lot of that sort of work is going to have to happen—regardless of any critique of the Democratic Party or the current leadership of the labor movement.

Jay Driskell spent five years organizing for the Graduate Employees and Students Organization. He is currently assistant professor of United States history at Hood College in Frederick, Maryland. His first book, First-Class Citizens: Rights, Respectability and the Making of Modern Black Politics (currently under contract with the University of Virginia Press), traces the development of an autonomous black politics in Atlanta surrounding the fight for black public education in the early twentieth century. He lives in Silver Spring, MD.

The Militant Minority: Untimely Meditations from David Montgomery

8 Jun

From David Montgomery, The Fall of the House of Labor:

Nevertheless, to organize concerted action and to fashion a sense of social goals shared by all workers required deliberate human agency. Class consciousness was more than the unmediated product of daily experience. It was also a project. Working-class activists, and some individuals from other social strata who had linked their aspirations to the workers’ movement, persistently sought to foster a sense of unity and purposiveness among their fellow workers….Both “history from the bottom up” and the common fixation on great leaders have obscured the decisive role of those whom twentieth-century syndicalists have called the “militant minority”: the men and women who endeavored to weld their workmates and neighbors into a self-aware and purposeful working class.

. . . .

The becalmed and beleaguered trade unions of the 1920s had made their peace with a most undemocratic America, whose economic underpinnings were soon to give way. When working-class activists sought a path out of the depression of the 1930s, they revoked that settlement, reopened controversy over what had been considered accomplished, and began to organize anew on the basis of the ways America’s heterogeneous working people actually experienced industrial life.


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