American Idolatry Meets Woke Iconoclasm

culture

Protesters who pull down statues are usually not content with removing the inanimate metal or stone object from its pedestal. They berate it, ridicule it, hammer it; they try to set it on fire; when that doesn’t work, they’re liable to behead it or dump it in a river to drown. Then the authorities retrieve it, as though fishing a corpse out of the lake. They crate it up so it can do no further harm, ship it to a statue internment facility, and forget about it forever.

Sympathetic accounts of the process make it sound quite rational. A statue of a Confederate general or a slave-owning president or Christopher Columbus, looming at you above the public square, might, especially if you are black or Indigenous, make you realize that the people who run and adorn your city aren’t like you. In fact, they make heroes out of the sort of people who oppress people like you, and they create a built environment where you might have to make your way through your oppressors’ distorted, self-serving interpretations of history every day on your way to the bus stop.

That would be a reason to go to the city council and urge members to hold some hearings on removals and replacements. Screaming at a statue, slapping it around, and then beheading it suggest another level of rage—and another level of interpretation. The statue has come to be identified with the person it represents. Ridiculing the hunk of bronze is ridiculing the represented person and attacking everything that, in turn, that person seems to mean. Traditionally (in the French Revolution, for example), pulling a statue off its pedestal is symbolically overthrowing or expunging the leader or ruler it depicts. One of the first things American soldiers did when they got to Baghdad was pull down the colossal Saddam Hussein. Reporters and television crews covered the toppling of the statue obsessively; it may be the best-remembered image of the Iraq invasion. Overthrowing Hussein and pulling down his statue didn’t seem to be clearly distinguished in anyone’s mind.

Monuments are often fated to become effigies, their destruction a premonition of the fall of the leader and the transformation of his symbolic order. In other cases, the destruction of the monument is a reenactment of the death or dismemberment of the leader that has already taken place, a way of killing him over and over even if he died in his sleep, as in the fate of thousands of statues of Stalin after the fall of the Soviet Union. Robert E. Lee is dead, but that doesn’t mean we shouldn’t kill him again (and again) in his images. What was “he” doing still hovering over the city of Richmond in 2020, anyway?

President Donald Trump’s response to this has also been traditional, indeed ancient. Appearing on Independence Day in front of one of the world’s largest sculptures, he said: “Today, we pay tribute to the exceptional lives and extraordinary legacies of George Washington, Thomas Jefferson, Abraham Lincoln, and Teddy Roosevelt. I am here as your president to proclaim before the country and before the world: This monument will never be desecrated, these heroes will never be defaced, their legacy will never, ever be destroyed, their achievements will never be forgotten, and Mount Rushmore will stand forever as an eternal tribute to our forefathers and to our freedom.” Then he announced that the “ringleader” of the “attack” on a statue of Andrew Jackson in D.C. had been arrested.

Trump further declared that he was issuing executive orders to make assaults on statuary punishable by 10 years in prison and to establish a “National Garden of American Heroes,” featuring a hundred or more sculptures depicting the likes of Davy Crockett, Amelia Earhart, Billy Graham, Douglas MacArthur, Dolley Madison, Audie Murphy, George S. Patton Jr., Ronald Reagan, Betsy Ross, and both Booker T. and George Washington. Sounds like the world’s least dynamic amusement park, but perhaps they’ll add some animatronics.

Trump’s claim that Rushmore “will never be desecrated” makes clear that he, and we, still understand the mentality of the idolater: Damaging a statue of Andrew Jackson is contaminating a sacred object, which makes the act outrageous. But the fact that the act of desecrating a statue outrages the idolaters is precisely what drives the iconoclasts; it’s the veneration of the person embodied in the inanimate object and in its placement and presentation that makes damaging or destroying it a symbolically powerful act. That’s how you get these idol wars.

The conflict between worshipping and destroying images, between idolatry and iconoclasm, is found in some form in almost every human culture. One classical depiction is in the Hebrew Bible. Moses returned from a mountaintop talk with Yahweh to find the Israelites worshipping a golden calf. “He took the calf the people had made and burned it in the fire; then he ground it to powder, scattered it on the water and made the Israelites drink it.” Then he set them to slaughtering each other. Ever since, there have been restrictions on images: The Jewish God can definitely not be sculpted, and similar, sometimes harsher, restrictions have run through Islam. The Protestant Reformation of the 16th century was to a remarkable extent a conflict about the use of images in worship, with the Protestants accusing the Catholics of worshipping paintings and sculptures, and hence of being pagans and polytheists. The Protestants destroyed images all over Europe.

Now, if you ask me squarely whether I’d rather be an idolater or an iconoclast, I’m likely to answer “an iconoclast,” because that sounds unconventional and interesting; I’d rather be an overthrower of shibboleths than an enforcer of them. Also, idolatry still sounds wildly irrational, as though we were worshipping the Great God Yottle, the omnipresent hunk of bronze.

But the image breakers seem rather irrational too, venting their rage on inanimate objects as though that would be a substantive blow against racism or whatever else they take themselves to oppose. It’s a bit like trying to suspend time by taking a hammer to your clock radio.

Irrational though it may be, the idolatry that leads to colossal Lincolns and Jeffersons in D.C. is routine for us all. On July 4, Trump described America as “uplifted by the Titans of Rushmore,” the event as taking place “before the eyes of our forefathers,” just as though the presidents were alive still and inhabiting their giant rock faces. He spoke of the woke iconoclasts as “ripping down Washington and Jefferson” (the men, not their images, mind) and as literally destroying American history; it appears that the level of symbols and the level of reality have been entirely confounded. But any child might point at an equestrian statue and ask, “Who’s that?” To which the answer is “Robert E. Lee” or “Napoleon,” not “that’s not a person—it’s a hunk of bronze.” I regularly say things like “I saw Trump on television” rather than declaring that I saw a very small, flat image of Trump. We all slide between representation and reality with great ease. Perhaps too great, because it leaves us vulnerable to elementary and sometimes bizarre confusions.

In other words, I’m more interested in what idolaters and iconoclasts have in common than the millennia-long conflict raging between them. Both sides evidently are working from a belief in what anthropologists once termed “sympathetic magic”: the idea that a person or a god inhabits, is actually present within, the representation. One worships the god in and as the statue, or one attacks the emperor by defacing his image. Harming an image of your enemy has the power to harm your enemy; gazing at a prospective lover’s or even a celebrity’s picture puts you under their spell, “enchants” you. Images are often reported to weep, or heal, or speak. Or they seduce and corrupt, and must be defaced, hidden, or destroyed. The idol of today—the colossal Stalin, and perhaps even the mountain-size president-gods of Rushmore—is fated for desecration tomorrow. Idolaters and iconoclasts need each other.

They share a belief in—really, a vivid, immediate experience of—what the art historian David Freedberg, in his 1989 book The Power of Images, called “fusion”: the presence in the image of the person or thing or god of which it is an image. In fusion, Freedberg writes, “the body in the image loses its status as representation”; it becomes, in the mind of the idolater or the iconoclast, what it depicts. “Arousal ensues,” says Freedberg (he’s got the response to pornography in mind, as well as patriotic or religious fervor): positive arousal to adoration in the case of the idolater, negative arousal to loathing, disgust, or rage in the case of the iconoclast.

“The iconoclast,” Freedberg continues, “sees the image before him. It represents a body to which, for whatever reason, he is hostile. Either he sees it as living, or he treats it as living.” Either way, “he feels he can somehow diminish the power of the represented by destroying the representation or mutilating it.”

Freedberg argues that things have changed little, that we still experience just as vividly as ancient cultures the presence of the thing in the image. It’s a hard feeling to escape, really. If you think you are immune to it, consider how you might feel if I stood in front of you and slowly ripped a picture of your mother in two. I doubt that ancient Byzantium or Reformation Europe can boast any clearer cases of the conflict between idolaters and iconoclasts than the scenes from Philadelphia in May and June, in which some people attacked while others tried to defend statues of Christopher Columbus and former Mayor Frank Rizzo (both of whom have “iconic” status in certain neighborhoods of South Philly). Certainly, it is hard to imagine such a conflict breaking out over an unshaped hunk of metal. Freedberg argues that it’s the resemblance of the statue to the person that lends it power: the power to make that person, even if he’s been dead a long time, manifest in the physical reality of the present.

But the “magical” identification of an image with its human inspiration goes only so far to explain widespread paroxysms of iconoclasm of the sort that occurred in eighth century Byzantium, in the Netherlands during the Reformation, during the French Revolution, or on the streets of America in 2020. Who controls public space, and hence who gets honored in public space, is a relatively raw vector of power. When the municipal or federal government is erecting and protecting images, tearing images down can become a generalized expression of anti-authoritarianism.

That’s the turn of mind that turns iconoclasm from occasional vandalism, or even a focused demand to reinterpret history, into a widespread outbreak of symbolic violence indiscriminately directed at publicly venerated images in general. We reach the point at which there is a loathing not only for specific historical symbols but for the whole authoritative symbolic order, right down to its approved artistic styles and the ways it orders public space. Pretty soon you’re tearing down anything that looks like a realist sculpture. Historical outbreaks of iconoclasm have often followed that pattern, progressing from criticism of specific sorts of images to what almost amounted to an attempt to erase or replace all images. Notoriously, the current wave of iconoclasm has not always distinguished between (images of) Robert E. Lee and (images of) Ulysses S. Grant, between images of slaveholders and images of abolitionists.

Even if we admit that we are all somewhat susceptible to sympathetic magic, we need to maintain some distance and distinctions if we intend to stop short of sheer superstition. Nothing you can do to his statues will alter history so that Robert E. Lee never existed. And as many totalitarian regimes have shown, it’s a lot easier to change all the pictures and sculptures than it is to change people’s minds or the concrete conditions in which they live.

 

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American Idolatry Meets Woke Iconoclasm

culture

Protesters who pull down statues are usually not content with removing the inanimate metal or stone object from its pedestal. They berate it, ridicule it, hammer it; they try to set it on fire; when that doesn’t work, they’re liable to behead it or dump it in a river to drown. Then the authorities retrieve it, as though fishing a corpse out of the lake. They crate it up so it can do no further harm, ship it to a statue internment facility, and forget about it forever.

Sympathetic accounts of the process make it sound quite rational. A statue of a Confederate general or a slave-owning president or Christopher Columbus, looming at you above the public square, might, especially if you are black or Indigenous, make you realize that the people who run and adorn your city aren’t like you. In fact, they make heroes out of the sort of people who oppress people like you, and they create a built environment where you might have to make your way through your oppressors’ distorted, self-serving interpretations of history every day on your way to the bus stop.

That would be a reason to go to the city council and urge members to hold some hearings on removals and replacements. Screaming at a statue, slapping it around, and then beheading it suggest another level of rage—and another level of interpretation. The statue has come to be identified with the person it represents. Ridiculing the hunk of bronze is ridiculing the represented person and attacking everything that, in turn, that person seems to mean. Traditionally (in the French Revolution, for example), pulling a statue off its pedestal is symbolically overthrowing or expunging the leader or ruler it depicts. One of the first things American soldiers did when they got to Baghdad was pull down the colossal Saddam Hussein. Reporters and television crews covered the toppling of the statue obsessively; it may be the best-remembered image of the Iraq invasion. Overthrowing Hussein and pulling down his statue didn’t seem to be clearly distinguished in anyone’s mind.

Monuments are often fated to become effigies, their destruction a premonition of the fall of the leader and the transformation of his symbolic order. In other cases, the destruction of the monument is a reenactment of the death or dismemberment of the leader that has already taken place, a way of killing him over and over even if he died in his sleep, as in the fate of thousands of statues of Stalin after the fall of the Soviet Union. Robert E. Lee is dead, but that doesn’t mean we shouldn’t kill him again (and again) in his images. What was “he” doing still hovering over the city of Richmond in 2020, anyway?

President Donald Trump’s response to this has also been traditional, indeed ancient. Appearing on Independence Day in front of one of the world’s largest sculptures, he said: “Today, we pay tribute to the exceptional lives and extraordinary legacies of George Washington, Thomas Jefferson, Abraham Lincoln, and Teddy Roosevelt. I am here as your president to proclaim before the country and before the world: This monument will never be desecrated, these heroes will never be defaced, their legacy will never, ever be destroyed, their achievements will never be forgotten, and Mount Rushmore will stand forever as an eternal tribute to our forefathers and to our freedom.” Then he announced that the “ringleader” of the “attack” on a statue of Andrew Jackson in D.C. had been arrested.

Trump further declared that he was issuing executive orders to make assaults on statuary punishable by 10 years in prison and to establish a “National Garden of American Heroes,” featuring a hundred or more sculptures depicting the likes of Davy Crockett, Amelia Earhart, Billy Graham, Douglas MacArthur, Dolley Madison, Audie Murphy, George S. Patton Jr., Ronald Reagan, Betsy Ross, and both Booker T. and George Washington. Sounds like the world’s least dynamic amusement park, but perhaps they’ll add some animatronics.

Trump’s claim that Rushmore “will never be desecrated” makes clear that he, and we, still understand the mentality of the idolater: Damaging a statue of Andrew Jackson is contaminating a sacred object, which makes the act outrageous. But the fact that the act of desecrating a statue outrages the idolaters is precisely what drives the iconoclasts; it’s the veneration of the person embodied in the inanimate object and in its placement and presentation that makes damaging or destroying it a symbolically powerful act. That’s how you get these idol wars.

The conflict between worshipping and destroying images, between idolatry and iconoclasm, is found in some form in almost every human culture. One classical depiction is in the Hebrew Bible. Moses returned from a mountaintop talk with Yahweh to find the Israelites worshipping a golden calf. “He took the calf the people had made and burned it in the fire; then he ground it to powder, scattered it on the water and made the Israelites drink it.” Then he set them to slaughtering each other. Ever since, there have been restrictions on images: The Jewish God can definitely not be sculpted, and similar, sometimes harsher, restrictions have run through Islam. The Protestant Reformation of the 16th century was to a remarkable extent a conflict about the use of images in worship, with the Protestants accusing the Catholics of worshipping paintings and sculptures, and hence of being pagans and polytheists. The Protestants destroyed images all over Europe.

Now, if you ask me squarely whether I’d rather be an idolater or an iconoclast, I’m likely to answer “an iconoclast,” because that sounds unconventional and interesting; I’d rather be an overthrower of shibboleths than an enforcer of them. Also, idolatry still sounds wildly irrational, as though we were worshipping the Great God Yottle, the omnipresent hunk of bronze.

But the image breakers seem rather irrational too, venting their rage on inanimate objects as though that would be a substantive blow against racism or whatever else they take themselves to oppose. It’s a bit like trying to suspend time by taking a hammer to your clock radio.

Irrational though it may be, the idolatry that leads to colossal Lincolns and Jeffersons in D.C. is routine for us all. On July 4, Trump described America as “uplifted by the Titans of Rushmore,” the event as taking place “before the eyes of our forefathers,” just as though the presidents were alive still and inhabiting their giant rock faces. He spoke of the woke iconoclasts as “ripping down Washington and Jefferson” (the men, not their images, mind) and as literally destroying American history; it appears that the level of symbols and the level of reality have been entirely confounded. But any child might point at an equestrian statue and ask, “Who’s that?” To which the answer is “Robert E. Lee” or “Napoleon,” not “that’s not a person—it’s a hunk of bronze.” I regularly say things like “I saw Trump on television” rather than declaring that I saw a very small, flat image of Trump. We all slide between representation and reality with great ease. Perhaps too great, because it leaves us vulnerable to elementary and sometimes bizarre confusions.

In other words, I’m more interested in what idolaters and iconoclasts have in common than the millennia-long conflict raging between them. Both sides evidently are working from a belief in what anthropologists once termed “sympathetic magic”: the idea that a person or a god inhabits, is actually present within, the representation. One worships the god in and as the statue, or one attacks the emperor by defacing his image. Harming an image of your enemy has the power to harm your enemy; gazing at a prospective lover’s or even a celebrity’s picture puts you under their spell, “enchants” you. Images are often reported to weep, or heal, or speak. Or they seduce and corrupt, and must be defaced, hidden, or destroyed. The idol of today—the colossal Stalin, and perhaps even the mountain-size president-gods of Rushmore—is fated for desecration tomorrow. Idolaters and iconoclasts need each other.

They share a belief in—really, a vivid, immediate experience of—what the art historian David Freedberg, in his 1989 book The Power of Images, called “fusion”: the presence in the image of the person or thing or god of which it is an image. In fusion, Freedberg writes, “the body in the image loses its status as representation”; it becomes, in the mind of the idolater or the iconoclast, what it depicts. “Arousal ensues,” says Freedberg (he’s got the response to pornography in mind, as well as patriotic or religious fervor): positive arousal to adoration in the case of the idolater, negative arousal to loathing, disgust, or rage in the case of the iconoclast.

“The iconoclast,” Freedberg continues, “sees the image before him. It represents a body to which, for whatever reason, he is hostile. Either he sees it as living, or he treats it as living.” Either way, “he feels he can somehow diminish the power of the represented by destroying the representation or mutilating it.”

Freedberg argues that things have changed little, that we still experience just as vividly as ancient cultures the presence of the thing in the image. It’s a hard feeling to escape, really. If you think you are immune to it, consider how you might feel if I stood in front of you and slowly ripped a picture of your mother in two. I doubt that ancient Byzantium or Reformation Europe can boast any clearer cases of the conflict between idolaters and iconoclasts than the scenes from Philadelphia in May and June, in which some people attacked while others tried to defend statues of Christopher Columbus and former Mayor Frank Rizzo (both of whom have “iconic” status in certain neighborhoods of South Philly). Certainly, it is hard to imagine such a conflict breaking out over an unshaped hunk of metal. Freedberg argues that it’s the resemblance of the statue to the person that lends it power: the power to make that person, even if he’s been dead a long time, manifest in the physical reality of the present.

But the “magical” identification of an image with its human inspiration goes only so far to explain widespread paroxysms of iconoclasm of the sort that occurred in eighth century Byzantium, in the Netherlands during the Reformation, during the French Revolution, or on the streets of America in 2020. Who controls public space, and hence who gets honored in public space, is a relatively raw vector of power. When the municipal or federal government is erecting and protecting images, tearing images down can become a generalized expression of anti-authoritarianism.

That’s the turn of mind that turns iconoclasm from occasional vandalism, or even a focused demand to reinterpret history, into a widespread outbreak of symbolic violence indiscriminately directed at publicly venerated images in general. We reach the point at which there is a loathing not only for specific historical symbols but for the whole authoritative symbolic order, right down to its approved artistic styles and the ways it orders public space. Pretty soon you’re tearing down anything that looks like a realist sculpture. Historical outbreaks of iconoclasm have often followed that pattern, progressing from criticism of specific sorts of images to what almost amounted to an attempt to erase or replace all images. Notoriously, the current wave of iconoclasm has not always distinguished between (images of) Robert E. Lee and (images of) Ulysses S. Grant, between images of slaveholders and images of abolitionists.

Even if we admit that we are all somewhat susceptible to sympathetic magic, we need to maintain some distance and distinctions if we intend to stop short of sheer superstition. Nothing you can do to his statues will alter history so that Robert E. Lee never existed. And as many totalitarian regimes have shown, it’s a lot easier to change all the pictures and sculptures than it is to change people’s minds or the concrete conditions in which they live.

 

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Brickbat: I’m Going to Make Them an Offer They Can’t Refuse

Acuomorestaurants_1161x653

The New York City Hospitality Alliance, which represents the city’s restaurants, said it might go to court if the state continues to keep restaurants closed to inside dining to reduce the spread of the coronavirus. But hours after the NYCHA spoke of the possibility of legal action, Gov. Andrew Cuomo threatened to end outside dining as well, saying the city’s bars and restaurants haven’t done as good a job as those in other parts of the state in enforcing mask mandates and social distancing. The NYCHA says thousands of restaurants will be forced to close if the restrictions aren’t eased.

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Brickbat: I’m Going to Make Them an Offer They Can’t Refuse

Acuomorestaurants_1161x653

The New York City Hospitality Alliance, which represents the city’s restaurants, said it might go to court if the state continues to keep restaurants closed to inside dining to reduce the spread of the coronavirus. But hours after the NYCHA spoke of the possibility of legal action, Gov. Andrew Cuomo threatened to end outside dining as well, saying the city’s bars and restaurants haven’t done as good a job as those in other parts of the state in enforcing mask mandates and social distancing. The NYCHA says thousands of restaurants will be forced to close if the restrictions aren’t eased.

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A Loss for Flynn and a (Temporary?) Win for McGahn

The U.S. Court of Appeals for the D.C. Circuit usually releases opinions on Tuesday and Fridays. Today, however, was Judge Thomas Griffith’s last day on the court before his retirement, so the court made an exception, releasing an en banc decision in which he participated, a divided panel opinion (in which he wrote the majority), and a revised panel opinion in which he participated.

The headline decision from the D.C. Circuit was the court’s en banc opinion in In re: Michael Flynn, overturning the panel opinion granting Flynn’s Emergency Petition for a Writ of Mandamus ordering dismissal of the criminal charges against him. With ten judges participating, the court issued a per curiam opinion denying the petition and rejecting Flynn’s attempt to have the case assigned to a different district court judge.

The two judges in the majority for the panel decision—Judges Rao and Henderson—each wrote dissents (and joined each others dissents). Judge Rao, who wrote the initial panel decision, focused on the merits. Judge Henderson focused on the question of whether Judge Sullivan had disqualified himself and the case should be reassigned on remand.

Judge Griffith wrote a concurring opinion that is worth quoting.

In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken.

This proceeding is not about the merits of the prosecution of General Flynn or the Government’s decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the Judiciary and its relationship to the Executive Branch. There are two central problems in this case: defining the scope of the authority of the Judiciary to inquire into the exercise of a core function of the Executive and deciding how the relationship between the district court and our court shapes a challenge to that inquiry. Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). And that principled disagreement revisits a long-running debate about the relative powers of the Executive and Judicial Branches. Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic, see Judiciary Act of 1789, ch. 20, § 22, 1 Stat. 73, 84; 28 U.S.C. § 1291, and we are aware of no case in which a court of appeals has ordered a district judge to decide a pending motion in a particular way.

Moreover, as its counsel repeatedly stated at oral argument, the district court may well grant the Government’s motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion under Rule 48(a), especially when the defendant supports the Government’s motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.

Judge Griffith had the opinion for the court in Committee on the Judiciary v. Donald McGahn, IIin which the court concluded, 2-1, that the House of Representatives lacked a cause of action to sue to enforce a subpoena to former White House Counsel Don McGahn. This same panel had previously concluded that the House lacks standing to sue to enforce a subpoena, but that opinion was recently overturned by the full court, sitting en banc. Judge Henderson joined Judge Griffith’s opinion—his last majority opinion on the court. Judge Rogers dissented. House Speaker Nancy Pelosi has already announced the House will seek en banc review of this decision.

In a final action, the court issued a revised version panel decision in which Judge Griffith participated granting Hillary Clinton’s petition for a writ of mandamus in a lawsuit seeking the disclosure of her e-mails. I wrote about the initial opinion here.

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A Loss for Flynn and a (Temporary?) Win for McGahn

The U.S. Court of Appeals for the D.C. Circuit usually releases opinions on Tuesday and Fridays. Today, however, was Judge Thomas Griffith’s last day on the court before his retirement, so the court made an exception, releasing an en banc decision in which he participated, a divided panel opinion (in which he wrote the majority), and a revised panel opinion in which he participated.

The headline decision from the D.C. Circuit was the court’s en banc opinion in In re: Michael Flynn, overturning the panel opinion granting Flynn’s Emergency Petition for a Writ of Mandamus ordering dismissal of the criminal charges against him. With ten judges participating, the court issued a per curiam opinion denying the petition and rejecting Flynn’s attempt to have the case assigned to a different district court judge.

The two judges in the majority for the panel decision—Judges Rao and Henderson—each wrote dissents (and joined each others dissents). Judge Rao, who wrote the initial panel decision, focused on the merits. Judge Henderson focused on the question of whether Judge Sullivan had disqualified himself and the case should be reassigned on remand.

Judge Griffith wrote a concurring opinion that is worth quoting.

In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken.

This proceeding is not about the merits of the prosecution of General Flynn or the Government’s decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the Judiciary and its relationship to the Executive Branch. There are two central problems in this case: defining the scope of the authority of the Judiciary to inquire into the exercise of a core function of the Executive and deciding how the relationship between the district court and our court shapes a challenge to that inquiry. Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). And that principled disagreement revisits a long-running debate about the relative powers of the Executive and Judicial Branches. Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic, see Judiciary Act of 1789, ch. 20, § 22, 1 Stat. 73, 84; 28 U.S.C. § 1291, and we are aware of no case in which a court of appeals has ordered a district judge to decide a pending motion in a particular way.

Moreover, as its counsel repeatedly stated at oral argument, the district court may well grant the Government’s motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion under Rule 48(a), especially when the defendant supports the Government’s motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.

Judge Griffith had the opinion for the court in Committee on the Judiciary v. Donald McGahn, IIin which the court concluded, 2-1, that the House of Representatives lacked a cause of action to sue to enforce a subpoena to former White House Counsel Don McGahn. This same panel had previously concluded that the House lacks standing to sue to enforce a subpoena, but that opinion was recently overturned by the full court, sitting en banc. Judge Henderson joined Judge Griffith’s opinion—his last majority opinion on the court. Judge Rogers dissented. House Speaker Nancy Pelosi has already announced the House will seek en banc review of this decision.

In a final action, the court issued a revised version panel decision in which Judge Griffith participated granting Hillary Clinton’s petition for a writ of mandamus in a lawsuit seeking the disclosure of her e-mails. I wrote about the initial opinion here.

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What Happens When Trump Judges Confront Trump Administration Deregulation?

In 2017, the National Highway Transportation Safety Authority (NHTSA) delayed a scheduled increase in penalties imposed on automakers for failing to comply with Corporate Average Fuel Economy (CAFE) standards. Then, in 2019, NHTSA rolled back the penalties to their 1996 levels. Several blue states and environmental groups sued in the U.S. Court of Appeals for the Second Circuit. As luck would have it, the case was assigned to three judges appointed by President Donald Trump: Richard Sullivan, Michael Park, and William Nardini. So the Trump Administration should have won,  right? Not so fast.

In a unanimous opinion issued today, the panel ruled that NHTSA’s reconsideration and reduction of the penalty was untimely and unlawful. Here is the beginning of Judge Nardini’s opinion for the court explaining the opinion:

During the oil crisis of the 1970s, Congress created a system of fuel economy standards for automobiles to boost fuel efficiency and drive down American dependence on foreign energy supplies. To promote those Corporate Average Fuel Economy (“CAFE”) standards, Congress exposed automobile manufacturers to penalties if their annual fleets fell short of the mark. Congress first set the penalty at $5 for every tenth of a mile per gallon (“mpg”) below the standard, multiplied by the number of cars in a manufacturer’s fleet, subject to certain offsets.

Inflation, however, can take the bite out of fines. In recognition of this basic economic phenomenon, Congress enacted laws in 1990, 1996, and 2015 to identify civil monetary penalties that were losing ground to inflation and to periodically update them to catch up with the Consumer Price Index. After the first act, the National Highway Traffic Safety Administration (“NHTSA”) and the Office of Management and Budget (“OMB”) identified the CAFE penalty as among those to be adjusted. Following the 1996 law, NHTSA engaged in rulemaking that increased the CAFE penalty rate from $5 to $5.50, and then, following the 2015 law, to $14.

NHTSA shifted gears, however, starting in 2017. First, it indefinitely delayed implementation of the increase to $14. Acting on a petition for review, this Court held that the delay violated NHTSA’s statutory authority and that the increase was therefore in effect for the 2019 model year. In 2019, following our decision, NHTSA issued a final rule that rolled back the penalty to $5.50 on the theory that the inflation-adjustment laws do not apply to the CAFE penalty in the first place, and that even if they did, an increase would be unwarranted as a matter of economic policy.

Following this latest move by NHTSA, we are presented with petitions for review that require us to answer two questions of statutory construction: (1) whether the penalty for violating the CAFE standards is a “civil monetary penalty” as defined in these inflation-adjustment laws; and, if so, (2) whether these laws authorized NHTSA to reconsider, in 2019, the 2016 catch-up inflation adjustment based on its economic effects. We hold that the CAFE penalty is a “civil monetary penalty” and that NHTSA’s reversal of the catch-up adjustment was untimely. Accordingly, we grant the petitions for review and vacate NHTSA’s final rule reversing the CAFE penalty increase.

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What Happens When Trump Judges Confront Trump Administration Deregulation?

In 2017, the National Highway Transportation Safety Authority (NHTSA) delayed a scheduled increase in penalties imposed on automakers for failing to comply with Corporate Average Fuel Economy (CAFE) standards. Then, in 2019, NHTSA rolled back the penalties to their 1996 levels. Several blue states and environmental groups sued in the U.S. Court of Appeals for the Second Circuit. As luck would have it, the case was assigned to three judges appointed by President Donald Trump: Richard Sullivan, Michael Park, and William Nardini. So the Trump Administration should have won,  right? Not so fast.

In a unanimous opinion issued today, the panel ruled that NHTSA’s reconsideration and reduction of the penalty was untimely and unlawful. Here is the beginning of Judge Nardini’s opinion for the court explaining the opinion:

During the oil crisis of the 1970s, Congress created a system of fuel economy standards for automobiles to boost fuel efficiency and drive down American dependence on foreign energy supplies. To promote those Corporate Average Fuel Economy (“CAFE”) standards, Congress exposed automobile manufacturers to penalties if their annual fleets fell short of the mark. Congress first set the penalty at $5 for every tenth of a mile per gallon (“mpg”) below the standard, multiplied by the number of cars in a
manufacturer’s fleet, subject to certain offsets.

Inflation, however, can take the bite out of fines. In recognition of this basic economic phenomenon, Congress enacted laws in 1990, 1996, and 2015 to identify civil monetary penalties that were losing ground to inflation and to periodically update them to catch up with the Consumer Price Index. After the first act, the National Highway Traffic Safety Administration (“NHTSA”) and the Office of Management and Budget (“OMB”) identified the CAFE penalty as among those to be adjusted. Following the 1996 law, NHTSA engaged in rulemaking that increased the CAFE penalty rate from $5 to $5.50, and then, following the 2015 law, to $14.

NHTSA shifted gears, however, starting in 2017. First, it indefinitely delayed implementation of the increase to $14. Acting on a petition for review, this Court held that the delay violated NHTSA’s statutory authority and that the increase was therefore in effect for the 2019 model year. In 2019, following our decision, NHTSA issued a final rule that rolled back the penalty to $5.50 on the theory that the inflation-adjustment laws do not apply to the CAFE penalty in the first place, and that even if they did, an
increase would be unwarranted as a matter of economic policy.

Following this latest move by NHTSA, we are presented with petitions for review that require us to answer two questions of statutory construction: (1) whether the penalty for violating the CAFE standards is a “civil monetary penalty” as defined in these inflation-adjustment laws; and, if so, (2) whether these laws authorized NHTSA to reconsider, in 2019, the 2016 catch-up inflation adjustment based on its economic effects. We hold that the CAFE penalty is a “civil monetary penalty” and that NHTSA’s
reversal of the catch-up adjustment was untimely. Accordingly, we grant the petitions for review and vacate NHTSA’s final rule reversing the CAFE penalty increase.

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Judge Justin Walker on Bar Bureaucracies, Mental Illness, and More

From Friday’s decision in Doe v. Supreme Court of Kentucky; Judge Walker (known in part for the coronavirus / drive-in church services / Free Exercise Clause decision) is a federal judge in the Western District of Kentucky, but has been confirmed for the D.C. Circuit:

Courts, journalists, and scholars have extensively documented the mental health issues that afflict lawyers. The problems begin in law school, where “law students have disproportionate levels of stress, anxiety, and mental health concerns compared with other populations.” After graduation, lawyers suffer from depression at higher rates than non-lawyers. Not long ago, the Kentucky Bar Association President described a spike in Kentucky lawyers dying by suicide as “disproportionate” and “disconcerting.”

Jane Doe was a lawyer in Florida. She moved to Kentucky. She wanted to practice law here. Bureaucrats didn’t want her to. They thought her mental disability [apparently depression or Bipolar I Disorder or both] made her unfit. For over two years, they stopped her. But she didn’t give up. And they eventually relented.

Then Doe sued them, alleging they had illegally asked about her mental health history and treatment, illegally forced her to turn over her medical records and her therapists’ notes from their counseling sessions, and illegally treated her like a criminal because of her disability.

This case is not only about Jane Doe. It’s also about the lawyers who decide who else can be a lawyer.

Under the Kentucky Constitution, that power belongs to the Supreme Court of Kentucky. The court, in turn, delegates that job to its Bar Bureaucracy:

  • The Character and Fitness Committee and Board of Bar Examiners comprise the Office of Bar Admissions.
  • The Character and Fitness Committee prohibits people from practicing law if the committee thinks they are immoral or unfit.
  • The Board of Bar Examiners prohibits people from practicing law if they can’t pass a timed exam that tests their ability to memorize whole areas of the law they will never again need to know anything about.
  • The Kentucky Bar Association decides who gets to stay a lawyer.
  • The Kentucky Lawyer Assistance Program keeps tabs on lawyers and aspiring lawyers who have mental health issues by monitoring their medications, counseling, where they live, and where they travel.

Anyone with any power in this Bar Bureaucracy is a lawyer. So, just like an oil or drug cartel, those who are already selling something get to decide who else may sell that same thing. Of course, unlike most cartels, this one is legal. In fact, the Kentucky Constitution requires it.

If Doe had sued the Bar Bureaucracy back when it stopped her from entering the market, she would have had standing to ask the Court to block it from treating her like it did. But you can’t blame Doe for waiting to sue. If your goal is to persuade the Bar Bureaucracy’s lawyers to let you join their club, it isn’t a good strategy to poke them in the eye with a lawsuit that accuses them of violating the Americans with Disabilities Act and the United States Constitution.

Because the Bar Bureaucracy (finally) allowed Doe to practice law, she lacks standing for prospective relief. And because legislative and judicial immunity protect Bar Bureaucracies from money damages arising from the promulgation of bar rules and the adjudication of bar applications, the Court will dismiss Doe’s federal claims. In addition, the Court declines to exercise supplemental jurisdiction over Doe’s state-law claims.

The Bar Bureaucracy won this round against an applicant it deemed suspect and undesirable. But there will be more applicants—and more lawsuits. Some of those plaintiffs will have standing to seek prospective relief. And when they do, the Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive….

Several federal and state courts have held that the Americans with Disabilities Act prohibits Bar Bureaucracies from unnecessarily interrogating applicants about their mental health. So too did the Department of Justice. In 2014, it concluded that questions about applicants’ mental health do “not provide an accurate basis for predicting future misconduct.” Instead, they likely “deter applicants from seeking counseling and treatment for mental health concerns, which fails to serve the Court’s interest in ensuring the fitness of licensed attorneys.” In other words, according to the Department of Justice, a Bar Bureaucracy’s decision to ask applicants about their mental health status makes aspiring lawyers less fit to practice law.

{To be clear, neither Doe nor the Department of Justice has argued that Bar Bureaucracies cannot ask about an applicant’s relevant past conduct, regardless of whether mental disability had a role in that conduct. Rather, they argue that Bar Bureaucracies cannot ask about an applicant’s status as a person with a mental disability, and they cannot treat an applicant differently based on that status. So, for example, it’s fair game to ask, “Have you ever been fired?” Or, “Have you ever robbed a bank?” Applicants’ mental health provides no escape from the questions, even if they had a mental disability when they were fired (or robbed the bank).} …

[Doe, who was a member of the Florida bar, applied to join the Kentucky bar.] [S]hortly before Doe took the February 2016 bar exam, the Character and Fitness Committee refused to approve her application. Instead, in March, the Bar Bureaucracy proposed, and Doe signed, a “consent agreement” for conditional admission. 23 It required 1) a Kentucky Contract (more on that later); 2) compliance with Florida’s rules and Kentucky’s rules and reporting requirements; and 3) “residency in Kentucky … unless” Doe was relocating for work and the Bar Bureaucracy approved.

The consent agreement did not provide details about the Kentucky Contract. Yvette Hourigan, Director of the Kentucky Lawyer Assistance Program, said the contract would mirror the monitoring arrangement Doe had with the Florida Lawyers’ Assistance Program, which was tailored to Doe’s diagnosis.

Doe passed the bar exam. She paid the dues and swearing-in fee.

Although Hourigan had promised to send a proposed contract, she didn’t. Instead, she arranged to meet with Doe the morning of the new lawyers’ swearing-in ceremony at the State Capitol. That day, Hourigan “texted that she was running late and they would meet on the steps of the Capitol” minutes before the swearing-in.

At this point, you might be thinking that a public place with many of Doe’s peers isn’t an ideal place to discuss private medical issues. (It isn’t.)

You might also wonder if other bar applicants could overhear their discussion.26 (They could.)

Instead of the personalized contract Hourigan had promised, she presented a boilerplate contract. It included a host of medically unnecessary requirements, including random drug and alcohol testing. When Doe told Hourigan she had never had drug or alcohol problems, Hourigan told her the provisions were standard. Hourigan, who is not a doctor but plays one on the Capitol steps, also said Doe’s medications required abstinence from alcohol. (They don’t.)

Doe refused to sign the contract. She told Hourigan it violated the Americans with Disabilities Act, and “the ADA does not permit the disabled to be treated like criminals.” (It doesn’t.) …

There’s much more; if you’re interested, read the whole opinion. A bit more from the end:

By this point, you might be wondering how a plaintiff could ever challenge the way a Bar Bureaucracy asks applicants about their mental health and puts them through the ringer if they truthfully disclose a mental disability. The answer is that a plaintiff could sue for prospective relief—a declaration that the questions violate federal law and an injunction prohibiting the Bar Bureaucracy from asking them. To have standing, the plaintiff would need to be a bar applicant, not an unconditionally licensed lawyer like Doe was when she filed this suit….

Let’s recap. For her federal-law claims, Doe lacks standing for prospective relief. She also lacks standing to sue the institutional defendants other than the Supreme Court of Kentucky and the Character and Fitness Committee because the others didn’t cause her injuries. Judicial immunity and legislative immunity shield the Supreme Court of Kentucky and Character and Fitness Committee from damages.

Doe’s federal claims must therefore be dismissed. And the Court declines to exercise jurisdiction over her state-law claims….

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.

Aspiring lawyers should seek the health care they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a Character and Fitness Committee would use that medical treatment against him—as Kentucky’s did against Jane Doe.

It is not a matter of if, but when.

I’m not sure whether all this analysis is sound—it’s not quite my field—but I thought it was quite interesting. (Note also that there is some doubt about whether lawyers are any more likely to suffer from mental illness than other professionals, see Yair Listokin & Ray Noonan, Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey.)

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