Man Without Qualities

Friday, October 04, 2002

Psychoanalyzing the Supreme Court

Linda Greenhouse begins her New York Times article on the United States Supreme Court's involvement with the Torricelli ballot case with a sentiment expressed widely in the media: Is it conceivable that not even two years after the United States Supreme Court brought the presidential election to a close with its 5-to-4 decision in Bush v. Gore, the justices would put themselves on the line again in a state election case that this time could determine control of the Senate? She ends it with the same thought: "To this volatile mix, does the court want to start the year off by adding Bush v. Gore the Sequel? On the other hand, can anyone who lived through Bush v. Gore the Original be confident of the answer?" The Note characterizes Ms. Greenhouse's thoughts with only some exaggeration: "Her conclusion: if the justices are sane, and still (as Greenhouse suspects they are) feeling sore and wounded after the heat of Florida 2000, they won't touch the case with a 10-foot poll." Ms. Greenhouse herself summarizes the "challenge" she purports to identify as "psychoanalyzing the Supreme Court in the aftermath of Bush v. Gore."

Ms. Greenhouse should accept the wisdom of her own metaphor. Ludwig Wittgenstein remarked already in 1938 that "In a way, having oneself psychoanalyzed is like eating from the tree of knowledge. Knowledge acquired sets us (new) ethical problems; but contributes nothing to their solution." Wittgenstein's prescient comment nicely reflects the fact that after decades of psychoanalysis creating (or at least serving as a cover for) all kinds of literary, political and God-knows-what-other kinds of fuss, there is now almost a consensus in the medical community that psychoanalysis (as opposed to other types of psychotherapy) has no therapeutic value - and almost no meaningful predictive value. Of course, there are still a few die hard psychoanalysts, hunkered in the trenches for the last battles of the "Freud Wars," but their professional medical and scientific associations will likely soon be sharing office space with the Flat Earth Society or the Yale English Department. Ms. Greenhouse should take that into account in deciding where to retire.

"Can anyone who lived through Bush v. Gore the Original be confident of the answer?" The answer to Ms. Greenhouse's question is "Yes!" I, personally, can be. And, in fact, I am.

I hereby confidently and boldly assert that the citizens of the United States can be sure that their Supreme Court will not be deterred from any involvement in this case by any sense of personal or "institutional" discomfort in re-engaging the same or similar legal and political arguments and forces that drove Bush v. Gore.

Is the reader shocked?

The Justices of the United States Supreme Court routinely accept the heat, and they have no problem staying in the kitchen. Need someone to say that the Court has the power to overturn Congress if the law violates the Constitution, even if Mr. Jefferson will try to get us impeached? Send over the papers. Want us to tell you if a slave is "property" - thereby busting up the nation? We'll take the case. Packing some innocent Japanese American off to the camps? Let us review the matter. Racial discrimination throughout the South? No problem - for years and years and years, no problem. Abortion hysteria? Bring it on - give us a double helping. Death penalty madness? We can't get enough of it! Hotly contested Presidential election? We'll do what we think the law requires! WE'LL SAY WHAT THE LAW IS!

And you know what? The Court will do what they think the law requires this time, too, and they won't give a rat's ass if it creates a media or political stink. They won't care if it means running the risk that they won't be going out to tea with the same colleagues they do now. And they especially won't care if some silly law professors or Ms. Greenhouse and her ilk write nasty articles about the Justices in a few months time.

The Justices have their failings, so do we all. But they take their oaths of office and responsibilities seriously. They don't sit in that marble palace in quasi-retirement or to avoid trouble. Neither do they normally look for trouble. But they have no problem accepting it if it's what they think the law requires.

The Justices really do have guts - and life tenure with irreducible salaries.

They don't need to be "psychoanalysed" or subjected to any other kind of phony, non-predictive "political analysis" that purports to detect an agenda "deeper" than the ordinary legal agenda - a "deeper" agenda which can, of course, only be fully understood by expert Court watchers such as Ms. Greenhouse. Ms. Greenhouse's article mostly brings to mind all the other silly articles she has written hilariously suggesting by one theory or another that she can determine some kind of coherent meaning in the Court's refusal to hear one case or another - "Cert Denied" orders. There is no meaning in such orders, no matter what Ms. Greenhouse says or suggests to the contrary - and she has said a lot to the contrary over the years. There are lots of reasons why a particular Justice may or may not vote to review a case - and I am not saying that the Court will agree to hear this one. But those reasons will not include these particular considerations Ms. Greenhouse deems so profound.

She just won't stop putting the Court on the couch.

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