The Moment of Truth — August 29, 1998

Justice Powell Dies

Hello, I’m mejeffdorchen, and this is the Moment of Truth. The one moment in the broadcast week when the truth is boldly examined, rather than shrunk from as Adam did from his God when he ate from the tree of knowledge – or as the mainstream press does when ordered to by its corporate overlords.

In the far distant future, when the corporate-manipulated pseudo-democracies of our present day are merely a faint memory, sentient beings of that far distant future, should there exist any, will look back on the history of humanity, I believe, as the history of atrocities overseen by and executed according to the whims of authority figures who were no more competent to make such godlike decisions than the most unexalted of their subjects.

Such a dithering fool in the robes of power was one Lewis F. Powell, Jr., Supreme Court Justice for 15 years, who capped eleven years of retirement by dying Tuesday at the age of 90. During his retirement from the high court he recanted two opinions of his that adversely affected the ability of many people to live, be free, and pursue happiness.

Former Justice Powell was revered as almost supernaturally fair-minded. It was said that you could never take his opinion for granted. He decided cases based on the merits of the arguments presented, rather than according to any preconceived ideological formula.

Of course, some might have described him as inconsistent, lacking conviction, void of juridical analysis, or arbitrary, if not perversely so. Descriptions of him as objective or not to be taken for granted remind me of the way conservatives refer to Ronald Reagan’s inability to distinguish the world as most people experience it from his avid and self-glorifying fantasy life. Instead of admitting that Reagan was a pathological liar, they grow misty-eyed, and they say things like, "Yes, he had the soul of an actor," or "No matter how grim reality might have been, he saw the world through the rose-colored glasses of the Hollywood he loved."

Justice Lewis Powell opined in favor of abortion rights in Roe v Wade, and in favor of the rights of the children of illegal aliens in Plyler v Doe.

Yet the same Justice Powell came down in favor of the death penalty in McCleskey v Kemp, in spite of ample evidence of racism in the death penalty’s application, and against the rights of consenting adults to engage in homosexual acts in private in Bowers v Hardwick. In both cases he was the swing vote. He changed his mind on both decisions after leaving the Supreme Court.

Judging from this microcosmic sampling of Powell’s so-called balanced and unbiased career, it might strike the judicious observer familiar with statistics that identically asinine results would have been achieved had Powell been replaced on the Supreme Court by a flipping coin or a magic eightball. Of course, neither a coin nor an eightball could have changed their minds after retirement – but for the people executed and persecuted under the fiat of the capricious Justice Lewis F. Powell, Jr., the results were identical.

What does it mean to be unbiased, anyway? How can a person be unbiased when making decisions bearing on the freedom of other human beings? Does one say, Okay, here’s how I’ll be an unbiased Supreme Court Justice: every other decision I make will be destructive; for every reasonable decision I make, I must make an idiotic one to balance it. Or does the unbiased Justice behave on Mondays, Wednesdays and Fridays as if the universe were ruled by a benevolent God who rewards righteousness and virtue, and on Tuesdays, Thursdays and Saturdays as if the universe were ruled by a malevolent demon? Or one day as if some moral direction can be groped for in a world of unclear meaning, and the next day as if existential chaos has doomed humanity to nihilistic hopelessness.

Whatever one can say, it is clear that Powell was certainly biased in one regard: he was biased in favor of a system of power in which economically and socially privileged white heterosexual men make decisions about how everyone else lives or dies. He certainly never seemed to waffle about that. He never said, "I, as someone to whom society has arbitrarily given greater ability to avoid poverty, sickness, homelessness and death than many other people, I am not sure I have the right to rule on whether or not a state that allows such unequal power relationships should be allowed to execute its citizens."

There was something that he said once, however, which, had he pursued its implications, might have led him to the above conclusion. Ruling in favor of the children of illegal aliens’ right to free education, he said, "It can hardly be argued rationally that anyone benefits from the creation within our borders of a subclass of illiterate persons."

One more time from the late great Justice Lewis F. Powell, Jr.: "It can hardly be argued rationally that anyone benefits from the creation within our borders of a subclass of illiterate persons."

Now let us take that thought and examine it – unlike the wayward and unbiased Justice Powell, let us not merely allow it to evaporate from our minds, leaving us a blank slate for some wily, glib city-slicker lawyer to etch his beguiling seductions upon. No, let us be more like Socrates or someone else with something resembling an attention span.

Listen: if indeed, "It can hardly be argued rationally that anyone benefits from the creation within our borders of a subclass of illiterate persons," then how can it be rationally argued that anyone benefits from the creation of an impoverished class, a medically vulnerable class, a class of people impeded from exercising their legal rights due to poverty, a class of people constantly pushed around, frustrated, angered, taken advantage of and made desperate by corporations organized on the social model of feudalism? And if indeed, "It can hardly be argued rationally that anyone benefits from the creation within our borders of a subclass of impoverished, medically vulnerable, legally thwarted and undemocratically abused and frustrated persons," then how can it be rationally argued that anyone benefits from the creation of such a subclass of persons even OUTside our borders?

You see? If only Justice Powell had been gifted with the power of a few moments’ courage and concentration, he could conceivably have been remembered as one of the most socially progressive people ever to have lived. But for some reason, he chose not to follow up on his reasoning in Plyler v Doe. He let the thought evaporate from his mind. He chose to turn from it, to let it die on the vine … just as so many first principles upon which liberal policies are founded are aborted through inattention before they can become radical enough to significantly alter the status quo.

I put to you that the privileged persons to whom these ideas occur and who then abandon them before they can bear their revolutionary fruit are influenced by the very privilege that puts them in a position to have their ideas enacted in broader society in the first place. I put to you that their privileges have an influence on their priorities – that somewhere in their minds it registers to them that to nurture a certain notion of social justice to its rational conclusion would unduly threaten their privileged status, and so – perhaps even unconsciously – they turn away from the original notion and on to other things. And that it serves their privileged status – when they see such a lack of concentration, will, conviction, and courage – it serves their privileged status to rename this weakness and cowardliness "balance" – to rename it "unbiasedness" and "objectivity".

That’s what I think. And believe me, I’d love for any of you privileged people out there to prove me wrong. But I won’t hold my breath.

In the meantime, this is the MOMENT OF TRUTH, and I’m mejeffdorchen. I’m here every week on National Beer Presents This is Hell Saturdays from 11 am to noon on WNUR 89.3 FM Chicago’s sound experiment.