As the progressive community gears up to fight against the inevitable right-wing demagoguery of President Obama's first Supreme Court nominee, I'm reminded of an oft-repeated philosophical allegory. Here's how Stephen Hawking tells it:
A well-known scientist (some say it was Bertrand Russell) once gave a public lecture on astronomy. He described how the earth orbits around the sun and how the sun, in turn, orbits around the centre of a vast collection of stars called our galaxy.
At the end of the lecture, a little old lady at the back of the room got up and said: "What you have told us is rubbish. The world is really a flat plate supported on the back of a giant tortoise."
The scientist gave a superior smile before replying, "What is the tortoise standing on?"
"You're very clever, young man, very clever," said the old lady. "But it's turtles all the way down."
What does this cosmological koan have to do with the Supreme Court? Well, first let's look at how Obama framed the importance of his pending nomination:
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
I believe this statement strikes at the heart of what's wrong with the judicial approach of the "conservative" ideologues who currently dominate the Supreme Court. An epitome of that approach is contained in Justice Scalia's opinion (joined by Justices Roberts, Thomas, and Alito) in Rapanos v. United States, a 2006 case challenging the Clean Water Act. The Court's argument centered around how to decide which bodies of water were covered by the Act. Scalia's opinion clearly states the purpose of the Clean Water Act:
The Act’s stated objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters."
However, he then goes onto to interpret the language of the Act in order to reach a conclusion that runs counter to the purpose of the legislation, severely limiting the application of the environmental protections. To Scalia, the case was merely an ideological game. Ignoring the real-world consequences of his opinion and lashing out at Justice Kennedy (who sought to expand the interpretation of which waters are covered), Scalia writes:
Truly, this is "turtles all the way down."
This insult from Scalia is revealing in so many ways. Apparently, Nino fears that adhering to the purpose of the Clean Water Act (to protect the common welfare) is a slippery-slope that threatens his judicial political ideology and will lead to further environmental protections. For Scalia, it's all about protecting land-developers, and to hell with the rest of us and our ecosystem.
Even more telling is that Scalia thinks the turtles allegory is about faulty logic, not a profound way of thinking about the universe and our place in it. Justice Scalia is a simple-minded ideologue who can't see beyond the interests of his friends and their discredited political philosophy. He ignores the purpose of laws and the real-world implications of his decisions.
Scalia's myopia highlights the wisdom of Obama's approach. It's ultimately not about finding a justice who will have a liberal ideology. It's about recognizing that the purpose of the law is to advance and protect the welfare of the people, and that all of our interests are interconnected and interdependent.
For Obama, it's turtles all the way down.