The Trump Card

A recent exchange following Jurgen Habermas’ 90th birthday reminded me of something I had written two years ago. The exchange is quite interesting — it confronts the limits of discourse in democracy as well as the legacy of Habermas in the face of Brexit, Trump, and the recent rise of illiberalism (particularly in the figure of Putin). You can read the initial article by Raymond Geuss here and then replies, from Seyla Benhabib and Martin Jay.

I wrote the article below in April or May of 2016 and submitted it to the NYTimes “The Stone” column. It was a long shot, but was the best venue I could think of. They said it didn’t fit or something. BTW, what a bizarre interaction that was… Anyway, the Habermas dispute reminded me of my article and I went back and read it. It stands up surprisingly well. Since then, I’ve written some stuff on no-platforming and politics. So, I’m quite a bit more sympathetic to the limits of discourse perspective. The whole thing has me thinking…

 

One of the most exhilarating and frustrating things about teaching philosophy to first-year undergraduate students is that it is difficult to make clear what constitutes my expertise in the subject. Of course, I know things about philosophy books and philosophical figures that my students don’t, but this is not the same thing as demonstrating expertise in making philosophical judgments.

I suppose most people have had this experience in conversations about politics where there are no clear boundaries and standards about what makes one set of beliefs better than another. It’s a sort of conceptual vertigo brought about by a contest without referee or rulebook where one is genuinely unclear what is worthy of value or admiration. It’s not obvious why we should accept one person’s view of what is politically right rather than another’s. And it’s not obvious when someone has broken the rules of political discourse. This is probably what leads a lot of people to give up and concede that nobody can be right, any person’s moral judgment is just as good as another — even though we know that this can’t be correct.

The reason for feeling conceptual vertigo, I believe, is that one arrives at judgments in both philosophy and politics only by carefully weighing competing views and interests. There is no formula for making these judgments except, perhaps, dialogue – either external or internal. Political (and philosophical) judgments are best arrived at after we allow competing interests a fair chance to state their case. This may be the purest motivation for entertaining the long “debate season” in US presidential politics.

And yet, Donald Trump’s rise to political leadership in the US Republican party seems to defy this optimistic view. Trump is not a politician who clearly articulates an ideological vision of government or embodies the most compelling political judgment. Instead, what Trump embodies, more than anything else, is power. I think this is both his appeal and his danger. And at least part of that appeal and danger can be understood by what I’m calling the Trump Card.

Aristotle was the first to codify the rules and strategies of discourse, what he called dialectic, in his Topics and Sophistical Refutations. One of the most important insights that Aristotle makes is that the rules of discourse change based on their context, including the status of the participants and their goals. For instance, the rules are different for a dialogue between a student and a teacher than they are for peers or enemies. Similarly, the rules are different if your aim is persuasion rather than truth. These rules operate in the background of every discussion, a hidden structure that enables conversation, and yet they can shift and change depending on the circumstances. This can be confusing, but it need not be.

Jurgen Habermas has done more to develop a sort of Aristotelian (by way of Kant’s transcendental analytic) articulation of dialectic in political theory than any other contemporary philosopher. In briefest form, Habermas developed “discourse theory” of political judgment. For Habermas, political positions are assessed by considering what the affected parties would claim in an ideal discourse. The basic insight is that reasons for or against any given political position are never one-sided. There are always competing interests and views. And it’s impossible to decide beforehand which views have legitimacy and which do not. In fact, the very notion of legitimacy — which rules to follow — is frequently the most hotly contested part of the debate. The only way to decide between competing positions is to introduce concrete facts and claims made by actors engaged in discourse where each side agrees to allow the other a fair hearing. The goal of discourse theory is to follow the logic of each side and allow the logic of each position to address the contested issues. After a fair hearing, one has to make a judgment that is grounded in the reasons provided by each side.

Habermas’s view obviously leaves a lot to be determined and it relies on an almost impossible ideal of impartiality, but it tells us something very important about the nature of political claims: it highlights the fact that what makes for the right decision or action in any circumstance under dispute is unclear until we allow the logic of competing arguments to play themselves out. In order for this to happen, we have to accept some very basic standards of discourse. We have to be willing to hear reasons from parties we disagree with and we have to be willing to follow the logic of their argument through.

I suspect that many people understand this basic insight. It’s probably why procedural due process and the first amendment are so dear to US political culture. It’s also probably why critics become so frustrated with the various “cards” thought to be played by traditionally disadvantaged groups: the “race card,” the “woman card,” the “microagression card.” These maneuvers are a sort of trump card in the back and forth of political discourse. In effect, they shut down further dialogue by announcing a claim so strong that it’s impossible to hear any contrary claim.

Frustration with these sorts of trump cards is real and it is probably a large part of the appeal of Donald Trump’s rejection of “political correctness.” And yet, it would be a mistake not to recognize that Trump and his supporters also play a potent card that goes beyond shutting down any particular political debate. When we pay attention to the logic of many of Trump’s rhetorical moves, we can see that what he does best is to deny dialogue, to reject even the most minimal standards of discourse. When Donald Trump refuses to answer a legitimate question, turns the tables with insult or mockery, changes the subject, makes an obviously false denial, or openly denies a former position he had held, he is playing the Trump Card. The Trump Card shuts down the very possibility of debate. The Trump Card refuses to answer to, listen to, or even acknowledge an opposing view. It refuses to put forward a position that could be open to attack. It is the sheer exertion of power, the refusal to engage.

Near the end of Ted Cruz’s campaign, when he attempted to engage some hecklers outside of a Trump rally, he experienced Trump supporters playing the Trump Card. Cruz, of course, is a master of debate, an expert at political rhetoric. But when he attempted to engage these Trump supporters in a simple dialogue, he was shut down. Trump’s supporters simply refused to respond with any sort of reasonable dialogue. “Can I ask you something?” “No” “Can I ask you something?” “No.”

When Donald Trump announces a position and then rescinds it days later or when he refuses to put forth a coherent policy position, many people see a candidate who lacks political substance. But what he lacks in policy substance, he more than makes up for in announcing a feeling of power, the sheer force of will. You can’t pin Trump down because he refuses to play by anyone’s rules but his own. This is probably clearer to Trump supporters than his detractors, which is why he does so well among people concerned about national security and national decline.

One of the problems with a political position founded on the projection of power is that once it loses power, it lacks any other foundation to stand on. As long as Trump is winning in the nomination process, beating the polls, and defying expectations, his projection of power appears to have real substance. But we should worry what will happen when that power is really tested. What lies behind it? What set of beliefs and actions really support the projection of force? Even more seriously, we should be concerned about conceding such a brazen display of rhetorical force in our political discourse. Without some basic, shared sense that other views deserve a hearing no matter how much we disagree with them, without some minimally shared standards of discourse, it’s hard to see how we can arrive at any rational judgments in political matters. And once the projection of power evaporates, the sense of vertigo will be pervasive. We will have stepped through the looking glass, where we will have lost the capacity to tell good from bad and right from wrong.

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Why is Justice Partisan?

I remember when I first voted in Texas. The most striking thing about the Texas ballot is the judges. A typical ballot may include local representatives, city council, state reps, and a couple of national races. But the ballot is dominated by 40-50 judges in courts you’ve never heard of. Libertarians, Republicans, Democrats, and even the occasional Green Party justice. Coming from Colorado and Massachusetts, I was confused. Why am I electing a judge in a court I’ve never heard of whose name I don’t even recognize? Today, I’m reminded of such strange practices in American democracy. The following are some random thoughts sparked by recent news on the Supreme Court.

On Tuesday, the Supreme Court announced its ruling on Trump’s “travel ban.” Though a case against the president’s ability to limit entry into the United States on national security grounds was always going to be an uphill slog, this particular president had seemed to make it much easier by constantly, publicly insisting that his “travel ban” was an intentional restriction on Muslims to enter the country. This, of course, is unconstitutional. Even the president cannot exclude individuals entry to the country on the basis of race or religion. But the ban itself had been reworked (and then reworked) sufficiently that, apparently, those intentions were sufficiently concealed for the majority. Nonetheless, Justice Sotomayor in her dissent compared the ruling to the Korematsu case of 1944, upholding President Roosevelt’s internment of Japanese citizens. What is striking to me is that our political polarization appears mirrored within the rulings of the Supreme Court.

Unfortunately, every 5-4 decision in this court is going to recall the unprecedented power grab orchestrated by Mitch McConnell when he denied Merrick Garland a hearing, following President Obama’s nomination, and then repealed the filibuster in Supreme Court nominations — effectively eliminating the minority’s power to protest. The fact that these 9 justices exercise so much power for so long makes the process of nominating them incredibly politically charged. With Kennedy’s announced retirement and the Democrats promising retribution for Garland, the politics of the court will only get more ugly.

And yesterday’s decision on public-sector unions has me feeling a bit desperate. I remember Samuel Alito’s nomination hearings. He, more than any other justice I remember, was responsible for introducing stare decisis into the common lexicon. Maybe that’s because he said so little else of substance when pressed on how his political views would inform his judgeship. At any rate, his majority opinion — which, by the way, will impact teachers more than any other sector of the workforce — is remarkable for overturning a 40-year old precedent that had held that agency fees were warranted in the case of unions. Alito’s argument is summarized by Amy Howe at Scotus blog. I excerpt here:

Stare decisis is “at its weakest,” Alito reminded his readers, in cases involving the interpretation of the Constitution, “because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Moreover, he added, the doctrine “applies with perhaps least force of all to decisions that wrongly denied First Amendment rights.” Because “[f]undamental free speech rights are at stake,” Alito concluded, there are “very strong reasons” to overrule Abood.

The free speech rights at issue here have to do with the way money is used to lobby governmental entities (who, in the case of public sector unions, also happen to be management). Political conservatives have consistently worked to align speech with money, a view no more clearly expressed than in the Citizens United case. I argued against some early opinion pieces in this direction on this blog many years ago. It’s very troubling when the First Amendment freedoms are identified with financial power because nothing is less evenly distributed in today’s United States than money. But, as a fundamental right of our democracy, free speech must be a right that all have access to exercise equally. When money is speech, that simply will not be the case.

At any rate, back to stare decisis. The reason the courts defer to precedent is so that they do not undermine their credibility and also maintain predictability in terms of both the perception and impact of their decisions. One wonders why these concerns are not pressing in the case of Aboos. As Elena Kagan writes in her dissent (again from SCOTUS Blog):

Kagan complained that there “are no special justifications for reversing Abood”: ”To the contrary,” she argued, “all that is ‘special’ in this case—especially the massive reliance interests at stake—demands retaining Abood.”  Kagan stressed that the Abood ruling “is deeply entrenched,” as over “20 States have statutory schemes built on the decision” that “underpin thousands of ongoing contracts involving millions of employees.” Kagan criticized the majority for acting, in her view, “with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teaching, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans.”

This decision will surely be devastating to current Police, Fire Fighter, and Teacher unions. Private-sector union membership has been decimated. Now public-sector union membership will probably also decline. It’s ironic that the death blow to unions has been delivered in the name of the First Amendment, given that unions are intended to provide a voice for workers at the table with management.

I guess I would search for ways to make this more palatable to myself, but I just don’t trust the judicial process much anymore. It reeks of partisanship. And with Kennedy’s departure, I’m afraid the worm will finally turn. The Robert’s Court will begin a long period of very conservative rulings that will shape culture and law for many, many decades. After Trump chooses his nominee and congress stamps it, the court will have a solid 5-vote majority of conservative jurists with Clarence Thomas, the oldest of the bunch, only seventy years old (Kennedy is 81). While Roberts has shown his willingness to break from the conservative block in several high-profile cases and Gorsuch has hinted that he might be willing to do so, Alito and Thomas have voted together 94% of the time. Incredibly, the conservative consolidation of the highest court will occur at a time when the public opinion is moving in the opposite direction. It looks like justice will only get more political in the years to come.

Elite Colleges and Affirmative Action

Following up on some of my previous affirmative-action posts, I found this op-ed in the Boston Globe particularly interesting. The op-ed centers around some new research of the most highly selective Universities in the US. What they find is that roughly %15 of white students at these Universities fall below the institution’s minimum admissions standards. Contrary to the story propagated most recently by the Supreme Court, white students who fall below the minimum standards are twice as likely to be admitted to these Universities than their minority counterparts.

This evidence clearly discredits the myth of the over-qualified white student who is denied acceptance to the most selective Universities because of racial quotas. What it demonstrates is that the much older system of affirmative action, namely, the good ol’ boys network, is still the most powerful system of disenfranchisement at elite colleges.

Of course, this kind of empirically driven argument seems incapable of convincing staunch conservatives, who find Justice Robert’s pithy logic–“the best way to end discrimination based on race is to stop discriminating on the basis of race”–more compelling.

Changes in Patent Policy

For those of you out there who know a lot more about this than I do, I found this interesting piece in the HuffPo on recent Supreme Court rulings on patents. I think everyone agrees that patent policy has not kept up with the changing landscape of innovation and technology. It seems that the courts are ever so slowly moving in the right direction, in two instances: interpreting patents in terms of the right to earn a royalty rather than the right to monopoly, and making patents more difficult to obtain, particularly on innovations that would be obvious to a person of ordinary skills in the industry.

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