Format: Hardcover
I picked up this book after hearing a podcast episode about it with the author and finding my interest peeked. By way of personal background, I have spent the years since the 2016 election trying to understand what drives Trump voters, by reading literally dozens of books around the topic. I have watched the increasing polarization over these years with some dismay. The recent claims, by anti-vaxxers and anti-maskers, that they have an absolute right to impose their potentially diseased selves on us have only heightened my sense that the American system is completely broken and that our body politic is sick in some fundamental ways that I could not explain. I often thought I'd like to ask people: Do you run your marriage this way, where each side absolutely insist on being right on every issue? And how is that working out for you?
This book describes a new approach to constitutional decisions, one that does not rely on what the author calls the "rightsist" approach where one side, the one the Supreme Court decides has the "strong" right, wins and the other side loses. According to Greene's view, the Court arbitrarily established a framework within the last decades since roughly the 1960s where some rights began to enjoy strong protection and other rights enjoy none. The Supreme Court arbitrarily assigned more weight to certain rights in ways that are not justifiable by the text of the Constitution. The Court then renders decisions by scrutinizing the text of a document that is over two hundred years old, engages in highly abstract judicial philosophy debates about how to construe the text of that Constitution, tries to divine the intent of the Framers, and uses arcane rules and precedents to render, often highly callously, dry, rules-based and rules-heavy decisions in cases that are, nevertheless, always about the claims of real people in specific circumstances in the here and now.
Greene argues that the Constitution neither authorizes nor requires this approach and that the Founders would actually have been dismayed to see how the current Court renders decisions. The Founders never envisioned such a central position for the Court in the first place but preferred to leave most decisions in the hands of legislatures and juries, local, political and accountable bodies with local knowledge. Looking to the courts of Germany and Canada, he outlines an approach that he calls "proportionality" where the high court looks to the facts and circumstances of the specific case in front of them and examines and balances competing interests and rights. This does not mean that the outcome would in most cases be different from those of our Court, but it does mean that these courts engage with the real problems and interests of real people instead of dusty doctrines and judicial philosophies they claim to adhere to such as, for example, "originalism." I myself have lost count of the times a Justice professes the be an adherent to some judicial philosophy only to see that philosophy heaved over the nearest wall if it is not useful to them for achieving their preferred result in a particular case. Green, I think rightly (and probably confirming the suspicions of most Americans) suggests that despite all the pomp and pretend, most of the Court's judgments largely simply reflect the policy preferences of the majority of the individual justices, reducing the Court to just another, but completely unaccountable, branch of government.
Greene argues that the "rightsist" approach of our high Court is a large source of our current divisions, because in this country, one side almost always wins while the other side loses. There is no effort by the justices to find any middle ground and so we don't think in terms of middle ground. He suggests that the rightful role of the Court should be to think about how much certain government actions burden certain individuals and groups and to carefully balance their interests in view of the specific factual situation in front of the Court. He thinks the Court should bring the parties together and to force them to find mediated or compromise solutions whenever possible, by eschewing the rights approach and refusing to give one side absolute wins in favor of an approach that looks to the underlying issues and facts.
He illustrates this with a number of examples. One prominent one comes from the German high court's treatment, in the 1970s (as in this country), of the abortion issue. The court did not, like our Court, deny that the fetus has any rights in order to be able to arrive at the simple solution of privileging the woman's right over that of the unborn - an approach that it takes all too frequently because it makes things much less complicated. Instead, the German court balanced the rights of the fetus with the rights of the pregnant woman. In doing so, the court took into account the very real economic and social pressures pregnant women may face when trying to decide whether they can afford to carry the fetus to term and decided to urge the government to provide much stronger support to pregnant women in the form of generous parental leave, early child care provided by the state, child subsidies for people who choose to have children, mandates that the woman has to be hired back into her job after ending parental leave, and so forth. In other words, the German court looked at the real problems pregnant women face and encouraged the Goverment to work on them, thereby encouraging women to carry the pregnancy to term. Abortion in the first trimester is still legal in Germany, but in stark contrast to our country, it has become uncontroversial whereas in this country, it is probably the most divisive issue, much more so even than in the years after Roe. was handed down. Greene argues that our Court's "rightsist" approach creates winners and losers in every issue facing society in ways that hugely raises the stakes for both sides and makes every decision existential and makes us take the most extreme positions because giving any ground feels so very threatening. We claim that imposing a 24-hour waiting period on women contemplating an abortion is an intolerable imposition on her absolute right to an abortion. We argue that mandating gun safety locks and prohibitions on criminals owning guns is an intolerable burden on the absolute right to bear arms. We fight to the bitter end in every instance and end up hating one another.
A legitimate chicken and egg issue could be raised here. Maybe Americans just hate each other and always have and the way the Court does its business does not create these divisions? My take is, maybe so but surely creating winners and losers with every decision can't be helping. And if one has a heart at all, it is also just sad to see how callously the Court routinely dismisses people's legitimate claims based on highly arbitrary rules. And as we all know, not being heard always feels absolutely lousy. All this is bound to create division.
I think every American should read this book. I'm a lawyer with a deep, personal interest in constitutional law and I found this book to be an absolute eye opener. I love it when someone makes me think in new and different ways. Whether you ultimately agree or disagree with him, Greene points to a possible way out of our current dysfunction and near-paralysis with respect to so many issues. This would involve the Court becoming a more humble and modest body, one that realizes that it has grown much, much too central to our political life. And it would involve the same Court, in its decisions, pointing to ways for our political branches to solve our problems instead of throwing everything to the Court and hiding their cowardly selves behind the Court's much too enlarged back. Buy it. Read it. It will enrich your thinking.
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