John's prediction here that the Supreme Court would find itself stripped of some of its powers by the other branches of government has not yet come to pass. At present, the highest court is still seen as a political prize to be won, rather than an impediment to be overcome.
The speculation about Hiliary Clinton running for President in 2008 was a pretty good guess, especially since in 2003 Barack Obama was still a member of the Illinois State Senate.
Can there be Gödel sentences in real life? Those are the kind of statements that crazy old Kurt Gödel identified, the ones whose truth value cannot be determined within the system in which they are expressed. I see that the character Neo in the Matrix series has been identified as a Gödel sentence in the Matrix system, but that's a movie. Reality is not nearly so pretentious. Nonetheless, it does sometimes do similar tricks.
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Consider, for instance, the recent opinion by a panel of the 9th Circuit Court of Appeals, which held that California's gubernatorial recall election would have to be postponed until next March, so that some counties in that state could replace their paper-punch ballot machines with more modern ones. That decision, perhaps mischievously, relied in part on Bush v. Gore, the US Supreme Court decision that ended the presidential election of 2000. (We now know that the opinion did not decide the election: the recount the Florida Supreme Court had ordered, and which the US Supreme Court stopped, would still have produced a win for Bush; but that's another story.)
The interesting thing about using Bush v. Gore is that the per curiam opinion says you're not supposed to. The majority said:
The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
Indeed it does, not the least of which is how to read a holding that says not to read it. Of course, it's not unusual for appeals court opinions to lack precidential value. There are so many that only a fraction are selected for the official case reports, because they deal with issues of general importance. The other opinions just decide the issue between the parties. Lawyers can cite unreported opinions, if they can find them. However, like articles in legal journals, those opinions are presented merely for their persuasive value; they are not precedents. The odd thing about Bush v. Gore is that the text seems to suggest the opinion should not be used even for that purpose in the future.
An expanded panel of the 9th Circuit is going to rehear the recall case in a few days. Maybe they will make the logical problem go away. If not, California could disappear into a Mobius strip.
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Speaking of the US Supreme Court, the October issue of First Things has several pieces on that eminent tribunal and its wicked ways. The keynote article, "The Supreme Court Rules," by Michael M. Uhlmann of Claremont Graduate University, usefully highlights the fundamentally arbitrary nature of the Court's practice of according different levels of scrutiny to different classes of Constitutional questions; since the Court took to defining rights out of thin air, the "Scrutiny Game" has become wholly capricious. For our purposes, though, the relevant bit comes in the summary at the end:
The second flaw in living constitutionalism is that, if the Constitution is an endlessly changing document, it is unclear why its provisions authorizing judicial power should be considered sacred and permanent. In its aggressive assertions on behalf of a living Constitution, the Court runs the risk of undermining the principle basis of its own authority. It may find, as Professor [Alexander] Bickel warned long ago, that it has no ground on which to stand.
There is a bit of magic in this kind of analysis. The heroine defeats Rumpelstiltskin by identifying him. Captain Kirk unhinges misguided computers by proving that they are the sort of thing they were designed to destroy. Of course, we find these motifs in stories because we also meet them in the light of day. The Supreme Court has lost its supremacy more than once in American history. Once again, as in the days before the Civil War and during the Depression, the Court has become a June bug in search of a windshield.
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Then there are sentences that generate all the confusion of Gödel sentences, but without the logical rigor. Consider this one from another First Things piece, "Scandal and the Constitution," by L. Marin Nussbaum. It appears in a grand jury's report on the affairs of the Diocese of Rockville Centre in New York State. The grand jury failed to find anything indictable, but it did opine "that the conduct of certain diocesan officials would have warranted criminal prosecution but for the fact that existing statutes are inadequate." In other words, the officials would have been criminals but for the fact they committed no crimes. This is very close to what is called "an Irish bull," of which a fair sample is this: "And now the only animals that live on the farm are the birds that fly over it." Yogi Berra is the master of this sort of expression, except that, unlike the grand jury, Berra isn't stupid.
There a couple of points in the Nussbaum article I'm not altogether happy about. For one thing, I don't think that grand jury went beyond its authority by investigating the diocese. On the other hand, I would agree that the investigation was probably an instance of prosecutorial abuse. I was on a grand jury once, and I think everything they do is prosecutorial abuse.
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Finally, we come to the significance of the newly announced candidacy of retired NATO commander, General Wesley Clark, for the Democratic presidential nomination. The timing of the announcement, and the fact that so many of Clark's campaign staff are members of the Clinton machine, have led to some very entertaining speculation.
Some say Clark is really running for vice president, anybody's vice president. In other versions, Clark is just the last in a series of no-hope candidates whom Bill Clinton has encouraged to run. The idea is to ensure the Democrats lose in 2004, thus leaving Hillary Clinton the obvious candidate for 2008. The more elaborate scenarios make Clark a "stalking horse" for Hillary. She will announce in due course; then Clark will turn over his campaign to her, with himself as her running mate.
There is a story about Charles DeGaulle and stalking horses. During the 1950s, if you were writing about French politics, you could make a modest living by speculating about when DeGaulle was coming back to power. Fourth Republic governments changed every few months, and every new government had one or more members who could plausibly be characterized as a stalking horse for him. DeGaulle did come back, in 1959. Then one wire-service reporter, who had been filing stalking-horse stories in a robotic fashion for years, filed a story speculating that DeGaulle was a stalking horse for DeGaulle.
The reporter was fired immediately. DeGaulle was fired in 1969.
Copyright © 2003 by John J. Reilly