Deviancy has been defined so far down that President Donald Trump’s retweet at mid-day Tuesday was barely noticed.
After all, what’s new? And who cares?
So what if the president of the United States brought to prominence an insane conspiracy theory that his predecessor, Barack Obama, arranged for four Americans to be killed at Benghazi to cover up an even bigger intentional blood-sacrifice of Navy SEALs—which in turn covered up the fact that Osama Bin Laden was still alive. Since it was a body-double who was in fact killed in 2011.
Or at least I think that’s the story Trump was amplifying. You’ll forgive me if I got some twists in the plot wrong.
Anyway, what’s the big deal? It’s just Trump being Trump. The important things were happening elsewhere, in the back and forth between Supreme Court nominee Amy Coney Barrett and various senators on Capitol Hill. That’s what serious conservatives were focused on. That’s what’s going to make a difference. If crazy tweets are the price we pay for an originalist justice, these people tell us, then it’s well worth it.
Except that it’s not. Leave aside how much real difference a Justice Barrett will make. Leave aside how much difference the Supreme Court will make—or will even try to make—if the GOP is reduced to a minority party for the foreseeable future, and the conservative movement is discredited with a majority of the American people. In fact the Court will follow the election returns, and the political climate, and the sociological and ideological currents. As it always ultimately has.
But let’s assume that Justice Barrett is, for conservatives, a real win.
But at what price? What is a win for the conservative legal movement worth if the conservative movement as a whole is in a state of moral, political, and intellectual collapse? No structure of court decisions, no edifice of edifying jurisprudence, can survive if it’s built on a fever swamp of conspiracy theories.
Justice Antonin Scalia and other Supreme Court justices were cited at the Amy Coney Barrett hearing. I didn’t watch it all, but I don’t believe one of the greatest judges never to make it to the Supreme Court, Judge Learned Hand, was mentioned.
It was Learned Hand who said in his 1944 Spirit of Liberty speech, that
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.
In fact, as a respite from Trump’s tweets, but also from the often disingenuous and uninspiring sparring before the Senate Judiciary Committee, here’s the whole text of Judge Hand’s brief remarks. Read the whole thing:
We have gathered here to affirm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land. What was the object that nerved us, or those who went before us, to this choice? We sought liberty; freedoms from oppression, freedom from want, freedom to be ourselves. This we then sought; this we now believe that we are by way of winning. What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.
What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.
Learned Hand was a representative of an older conservatism, long-gone and presumably never to return. Or could it return? Could the terrible descent into the fever swamps—and the terrible accommodation of that descent by the Republican party and the conservative movement—jostle us out of our short-sightedness and complacency?
We need a return to the spirit of Learned Hand far more than we need one more vote on the “right” side of some issues on the Supreme Court.