Strongly Worded Dissents
June 9, 2011
Jun 9, 2011
14 Min read time
The following is an edited transcript of a conversation between Boston Review Coeditor Joshua Cohen and Brown University Economics Professor Glenn C. Loury on Bloggingheads.tv. The pair discuss the recent Supreme Court decision on California prisons and Cornel West’s public feud with President Obama.
Joshua Cohen: We were going to start by talking about this recent Supreme Court decision about California prisons, upholding a lower court order telling the state that it has to reduce the number of people in its prisons, essentially because the overcrowding is preventing the state from providing prisoners with the mental-health and medical care that they need. The only remedy for the constitutional violations, the Court found, was to reduce overcrowding. It was a 5-4 decision, with a very strongly worded dissent by Justice Scalia, although whenever Justice Scalia dissents, it’s a strongly worded dissent.
Glenn Loury: What did he say? The greatest abuse of judicial power in the history of the republic?
JC: It was “the most radical injunction, structural injunction, issued by the Court in our nation’s history, an order requiring California to release the staggering number of 46,000 convicted criminals.” The order requires California to reduce the number of people in its prisons and there are a variety of ways that they can do that.
The thing that I found disturbing in the Scalia opinion, which was signed by Justice Thomas as well, was there isn’t really any point in the opinion where there’s an acknowledgement of the severity of the problem, an acknowledgement that there is some kind of serious constitutional violation—some cruel and unusual punishment. In the dissenting opinion by Alito and Roberts, there are a few places where they acknowledge that there has been a severe, serious problem and what they say is that, “Well, there’s some evidence that things are getting better and maybe there are some other remedies, like, if you’re not giving good enough medical care then what you have to do is make sure that the medical facilities are kept up properly and then maybe you hire some more staff. You don’t have to reduce the numbers of people in order to remedy the constitutional violations.” But there’s at least an acknowledgement of the problem.
Now, you were involved in this case.
GL: I was only marginally involved. There was a brief that was put in by thirty criminologists—they use the word liberally, you know, I’m an economist—that it would be feasible to affect this release without an undue endangerment of public safety.
I just want to say for my own part in this case, not having a constitutional law expertise background, but just sort of wondering what the Eighth Amendment might mean in the face of the reality of very high incarceration rates and very limited resources. So the overcrowding, the fact that there are untreated mental health issues that go on for people inside prisons, and all the things that you just said, raise in my mind the question that, well, if the Constitution doesn’t protect incarcerated persons to the degree that this lower court decision was attempting to assert, then, what exactly is excluded by the Eighth Amendment?
I’m also reminded of this previous case—this was about the beating of a prisoner by prison guards—and the question was whether or not a lower federal court’s judgment that the prisoner’s rights under the Constitution had been violated would be upheld. Justice Thomas’s view (in this case that I only vaguely remember) was that, of course a prisoner shouldn’t be beaten, but that’s a matter of state law, his rights are perfectly protected under state law, and that it doesn’t rise to the level of federal Constitutional protection, so he took the view that the Supreme Court ought not to get itself involved there.
JC: I think it’s fair to say that none of us, anyway, probably not you, not me, like the idea of, to put it in a slogan: “federal courts running state prisons.”
JC: Courts don’t have the competence to do that. That’s fine. So this is the kind of thing that you want the courts to be dragged into reluctantly. They don’t have the competence to do it.
JC: Having courts telling schools how to be run or how prisons to be run, this is not what you want courts to be doing, but when you’ve got people with mental illness getting locked up in little cages . . . this is what I find awful about the Scalia opinion. I mean, you can get as angry as you want at the legislature, but it is an absolutely unacceptable circumstance, which is why you have the very unusual situation of photographs being included in the majority opinion in this case.
What might the Eighth Amendment mean in the face of very high incarceration rates and very limited resources?
GL: Yeah, I saw that. I feel like we should probably move on to the second topic, but I just want to say, at a kind of broadly gauged sort of political, moral level, we have this institutional phenomenon which has been the really amazing growth of incarceration, which has been one aspect of our management of a lot of difficult problems that we have in society. And the Court’s decision, I think, can partly be seen in that light of our fitful, difficult effort to negotiate what’s really a morally fraught circumstance. Crime and punishment, these are not just clean, black and white things. I mean, let’s suppose that everyone who’s in jail is legitimately incarcerated. I mean, okay, fair enough, but that hardly ends the discussion.
GL: How we punish them, what we do with them, how we stigmatize them, how we nevertheless maintain sight of their humanity . . . these are really fundamental things.
JC: I agree with you. What I think we can hope for—it’s probably unrealistic, but we can hope that this is a challenge. There’s a public conversation and the Court has now made a move in this public conversation, and what the Court has said is, “You want to lock up more than 2 million people, you have to do it consistent with respecting their dignity, and that’s costly to do.”
JC: So you’ve got to make sure that you’ve got a good enough reason for doing it. I think in public discourse about this issue, what we can hope for is that this decision by the Court is going to say, “Are you prepared to pay the costs that you have to pay in order to pursue this policy?” And I’m connecting a few dots and maybe they shouldn’t be connected, but you’ve got the California decision, you’ve got a new Prison Commissioner in the state of Maine who’s basically said you can’t run super-max jails in Maine the way they’ve been run, we’re going to reduce the number of people who’ve basically been subjected to a kind of legalized torture in Maine. And then you have—
GL: Yeah, it’s unbelievable.
JC: —this report that’s come out recently that says privatizing prisons is not a great cost-saver. A couple of things are happening that may produce a different kind of public conversation about this.
Cornel West v. Barack Obama
GL: We were going to shift to this other topic quickly.
JC: Our friend Cornel West.
GL: Cornel West. We laugh, but it’s not funny.
JC: No, it’s not funny.
GL: Cornel West has been on a tear of late criticizing the President of the United States in very memorable terms. He has referred to the President as “a black mascot of Wall Street, oligarchs, and corporate plutocrats.” I believe that this is an accurate quote of brother Cornel West, and he said this on cable television.
JC: He was following up on an interview that he had done in which he had said something about the President keeping his distance from free black men, that he likes upper class white brothers and Jewish brothers.
GL: Jewish brothers. He actually went there, Josh.
JC: Yeah. Keeping his distance from free black men who tell him the truth. Now, I guess Charles Ogletree doesn’t count as telling him the truth.
Here’s the thing: Cornel has been a pretty consistent critic of the Obama administration from the beginning. He did a lot of events for Obama during the campaign.
GL: Yes, scores.
JC: And he’s been pretty upset since he didn’t get the invitation to the inauguration that he thought he was entitled to. You know, there’s one aspect of this personally aggrieved stuff—I mean, you take somebody like Glenn Greenwald. Glenn Greenwald has been a very consistent and very strong critic of the Obama administration pretty much all along. Or, you know, Noam Chomsky, very strong, very consistent critic, all along. And Greenwald and Chomsky and other guys, they don’t expect to get an invitation to a state dinner. They know that if they’re going to make those consistent, strong, principled criticisms, not giving any ground, that they are going to be outsiders, and they don’t expect anything different from that. They’re not looking to be whisperers; they’re not looking to be prophets of the palace.
Speaking truth to power doesn’t get you invited to the state dinner.
GL: I think you’ve hit it right on the head. It’s the conflation of two different things. There is an argument about policy and politics and ideas and ideology. And then there’s this issue of being connected, of being an insider. And I believe that Cornel, whatever the merit of the substance, diminishes the effectiveness of being a critic by conflating these. You know, he likes to call people “brother,” —“my Jewish brothers this,” “my Catholic brothers this,” “my brother,” “my brother.” There is a personal dimension to the thing, and there’s a kind of fealty there. “We’ve got a black President, and I’m a black public intellectual.” I don’t mean to put words in Cornel West’s mouth, but there does seem to be a kind of personal disappointment at the thing. That’s not consistent with the prophetic intellectual and political profile. Speaking truth to power doesn’t get you invited to the state dinner.
JC: I think that the reason I added that detail to the remark about keeping his distance from free black men, and it’s not just distance from free black men but distance from free black men who tell him the truth—this isn’t just to get the quotation right, but I think it’s important, because when Cornel says “people who tell him the truth,” he means people who are saying the kinds of things that Cornel is saying. But it’s not like there are a lot people who are saying those things to Obama who are white rather than black. It’s not like a lot of Jewish brothers—this is not what Rahm Emanuel was telling Obama when Rahm Emanuel was around the White House.
GL: Oh, as if Obama could hear it from the Jewish brother but can’t hear it from the black brother, which is the implication of Cornel’s comment.
JC: That’s right. He’s not hearing it from anybody. Maybe Jared Bernstein, before he left as Biden’s economic adviser. Jared Bernstein was saying something in this neighborhood. But Obama has basically surrounded himself with advisers who are not conveyors of Cornel’s message and it doesn’t matter if they’re white, black, or brown, men or women. But I don’t know, do you agree about that? Is there a race issue?
GL: I’m sympathetic to the main point that you were making, which is that the coterie of advisers that President Obama has is what it is, and it’s a centrist, establishment—relative to progressives—conservative, or accommodating coterie, and that doesn’t have to do with the color of anybody.
But the extent of my disagreement I think can be summed up in the observation that quite apart from anything that President Obama may want or have said, the symbolic significance of him being an African-American and being elevated to the highest office, has deep historic resonance. It’s up there with King, it’s up there with the big turns of the wheel that have occurred over the course of the country’s development of its democracy from a state when the Africans were chattel to a state, recently arrived at within our own lifetimes, that we have become equal citizens. And the drama of that, the kind of pathos of that, the kind of moral weight of that history, is to some degree, necessarily, whether the President wants it or not, embodied in his elevation to, and conduct of, the office of the Presidency.
GL: This is a part of the American political sensibility and it’s tied up with the President because his blackness is tied up with it. Now, having said all of that, there are dilemmas and there are blind alleys and there are many pitfalls, but it’s important to have a clearly articulated criticism from the progressive and critical end of the American spectrum that has a kind of black resonance to it—the critical edge of African-American political witness, holding America to a higher standard, pointing out its hypocrisies and inconsistencies, making sure that we don’t become triumphalist and have amnesia about all of the difficult things that we’ve had to overcome and the growth that we’ve had to experience—saying that, notwithstanding the fact that the President has to make his compromises—let me just be concrete—he has to preside over a war on terrorism and American military hegemony on a global scale, he has to legitimate huge transfers of wealth, and the maintenance of huge disparities of wealth that are at the very root of the political economy of this nation, which don’t necessarily have to be legitimate in some abstract sense. I mean, the bankers? The thing that happened in 2007, 2008, 2009 in terms of how we managed the financial crisis and what the effective redistribution upward of wealth, power, the fact that people making $1 million or $10 million or $100 million a year can buy our government, and when an African-American ascends to the highest office he’s the one who’s selling it? All of these things need to be said by a Noam Chomsky, and they need to be said by a black Noam Chomsky.
JC: I agree.
GL: But they need to be said in a way that doesn’t sully that message, the sort of purity of that prophetic and critical message, with all this personal baggage.
Don’t whine. Organize!
JC: I agree. You know, there’s an important point that Cornel also made that I think got buried in the personalization of it. He has talked about civil disobedience and whether that’s the right strategy. Obama basically ran—whatever the poetry about hope and change—more or less as a centrist.
JC: He was getting beaten up by Clinton and Edwards on healthcare during the campaign because he didn’t have a progressive enough position. He was very clear all along that, though he didn’t like the war in Iraq, he did like—I’m putting it crudely—he really liked the war in Afghanistan: that was the good war. He got beaten up some because he was basically too strong a free trade guy. So he was pretty clear that he was running as a centrist Democrat, and the fact of the matter is that his voting record is pretty consistent with that. Nevertheless, he became during the campaign and subsequent to the campaign the focus of the projection of all kinds of fantasies that people had about him, both negative fantasies (you know, “palling around with terrorists”), but also positive fantasies that he was really much more deeply, committedly progressive.
GL: He really agrees with us, but he can’t say so, and once he gets in there, we’ll see.
JC: And what you had was lots of disappointment in what he’s done, and my feeling about this is, don’t whine, organize. The best thing that’s happened in the country in the past couple of months is what happened in Wisconsin. And who knows, when the political history of this period is written that may turn out to have been a very important set of events. Because the fact is that whatever Obama stands for, there can’t be a progressive President if there’s not a progressive political movement.
GL: Meanwhile you’ve got the Tea Party . . .
JC: And then you get up and you say, “Hey, you’re not doing the right thing, you’re not being Franklin Delano Roosevelt.” Well, Franklin Delano Roosevelt was getting pushed pretty hard from the left also, so I think that this projection of an image of Obama as the progressive he wasn’t that you put onto him, and the expectation that he’s going to deliver on the promises of a nonexistent progressive movement—it’s politically silly. So when Cornel says, civil disobedience, I’m just taking that as a marker for “people should be reducing their expectations of the President and of the Democratic Party, and increasing their expectations of themselves and the need to be an organized, mobilized, and powerful force.” And I think that was a hidden message in what Cornel said, but that one, I agree with.
GL: Well, I think I can sign off 100 percent on what I just heard you say in that last soliloquy. And we both have to go.
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June 09, 2011
14 Min read time