Why I like Pope Francis

Pope Francis, reports James Carroll in The New Yorker, recently said of Pope John XXIII, with admiration, that "he repeated the motto, 'See everything; turn a blind eye to much; correct a little.'"

How very far, how wonderfully far, that sentiment is from the idea that God's law, or ours, must be a relentless engine of enforcement!

Nelson Mandela as a man of the law

So much has already been eloquently said about the passing of Nelson Mandela that it is daunting to add anything. (All the more so after Barack Obama's profound eulogy today in South Africa.) In a way, too, words are superfluous; a life so extraordinary speaks so directly to our hopes for a just world. How could someone have shown so much courage, endured so much and emerged with such grace and wisdom?

Some part of the answer may actually lie in law. Mandela of course was a lawyer, but he equally was a lawbreaker. (Leading a guerrilla campaign is rarely legal.) He was not bound by law - not the apartheid state's, nor even the ANC's internal norms, which he slipped by to initiate the negotiations that ultimately brought apartheid to an end.

Nevertheless he cared about law. When he famously declared that he found himself facing charges as a black man in a white man's court -- and wore traditional African clothes to make the point, though he was a notably stylish Western dresser -- he was at pains to explain that he meant no personal disrespect to the white magistrate hearing the case.

When he became President of South Africa, he carefully demonstrated his respect for law. Famously (at least among lawyers) he unhesitatingly accepted an early Constitutional Court judgment that one of his executive orders was unconstitutional. More remarkably, really, he obeyed a subpoena to testify in a case challenging another of his actions, and then endured the trial judge - an unreconstructed hangover from the apartheid era - criticizing his credibility! (There are moments when justice is blind, deaf and dumb.)

All of this was strategic, certainly. But strategy is partly personality; the moves a leader makes tend to be the ones that fit him or her best. Certainly law was familiar to Mandela, as the co-founder - with another remarkable leader, Oliver Tambo - of South Africa's first black law firm. But his autobiography, Long Walk to Freedom (1995), reflects not just legal knowledge but a love, a deeply frustrated love, of the law.

Here he is on his coming of age in the law: 

     As a student, I had been taught that South Africa was a place where the rule of law was paramount and applied to applied to all persons, regardless of their social status or official position. I sincerely believed this and planned my life based on that assumption. But my career as a lawyer and activist removed the scales from my eyes. (260) 

And here he is, speaking to the court in the Rivonia trial which led to his sentence of life imprisonment:

I would say that the whole life of any thinking African in this country drives him continuously to a conflict between his conscience on the one hand and the law on the other. (330) 

Later in this speech he declares: 

But there comes a time, as it came in my life, when a man is denied the right to live a normal life, when he can only live the life of an outlaw because the government has so decreed to use the law to impose a state of outlawry upon him. (331) 

This connection to law is not only a matter of philosophy but of style. Elsewhere in his autobiography Mandela writes:

I confess to being something of an Anglophile. When I thought of Western democracy and freedom, I thought of the British parliamentary system. In so many ways, the very model of the gentleman for me was an Englishman.... While I abhorred the notion of British imperialism, I never rejected the trappings of British style and manners. (302) 

Mandela, it seems, was a revolutionary gentleman, and I take this to be partly a lawyerly attitude, for South African courts were notably structured on British models. The "trappings of British style and manners" surely include an emphasis on “order.” One who cares about order may still lead a people into war – as Abraham Lincoln did. But such a leader may be able to lead them into peace as well.

It’s also worth saying that lawyers care about small points as well as large - hence their reputation for fixating on technicalities. To see the possibility of peace in the midst of confrontation can be seen as sweeping inspiration rather than fascination with detail. And yet, in a certain sense, Mandela's ability to see the potential for an agreement - made up of hundreds or thousands of "small points" rather than one very large point of all-out racial war - was an expression of this capacity.

Nelson Mandela was a lot more than a lawyer - but I think that part of his strength was that he was a man of the law.

The "Camelot" years in the anti-apartheid struggle

A fascinating feature of Alan Wieder's biography, Ruth First and Joe Slovo in the War against Apartheid (2013), is his reference to the 1950s as "Camelot" for white people who were part of the struggle against apartheid. As Wieder says, it was Gillian Slovo, one of the children of First and Slovo, who applied this term, and, one senses, she didn't do so entirely approvingly. The Slovo children clearly suffered from their parents' intense commitment to the struggle, as the children of other public men and women have often struggled, and Gillian Slovo's perhaps unhappy characterization of her parents' world should be understood against this background.

Nevertheless, the word may be apt. Nadine Gordimer's book Burger's Daughter -- a work of fiction, but connected to the actual life of a leading South African anti-apartheid lawyer, Bram Fischer -- vividly describes the partying of the day. It was, it seems, exciting to oppose apartheid in those years. And why shouldn't it have been? The whole world was moving away from doctrines of racial inequality, and surely South Africa would not sustain its isolation from this progressive trend indefinitely. Victory was coming. Meanwhile, though there were risks and consequences, they were much less severe than they would soon become. In the 1950s, of the many anti-apartheid leaders and activists who were accused in the Treason Trial, not one was convicted. And when police raided your house (as I think Stephen Clingman recounted in his biography of Fischer, Bram Fischer: Afrikaner Revolutionary (2000)), you offered them tea -- if you were white. A measure of the romantic flavor of the time is that many people apparently didn't take the precautions their clandestine efforts really called for. And, while the political struggle went on, the opponents of apartheid were able to live a life that crossed racial lines -- lines that no other South Africans dared cross.

Things would soon grow worse. A state of emergency and a host of laws that made emergency rule part of regular life, a series of successful prosecutions (including of Bram Fischer), and the institutionalization of police torture changed the world of anti-apartheid opposition. It would take till the 1970s for a spirit of opposition to begin to flourish again. It's all the easier to understand how powerful the state oppression of those years was, when we know how much had been dreamt of and lost from the 1950s.

Have apartheid's diehards in South Africa been trying to subvert the ANC government?

Another startling thought about post-apartheid South Africa, from Barry Gilder, who did intelligence work for the ANC in exile and then was a senior intelligence official in the post-apartheid government, in his memoir Songs and Secrets: South Africa from Liberation to Governance (2012): Gilder believes that unreconciled apartheid supporters, outside and inside the government (many old-order officials did remain inside the government for years, as a result of agreements in the negotiations) were actively trying to undercut the new government. He argues that unseen actors were deliberately feeding false information about supposed security threats to the government and others, apparently to sow dissension and disagreement and generally weaken the ANC’s ability to govern. Gilder does not deny that the ANC did plenty to weaken its own ability to govern, but he insists that others contributed, and deliberately.

Gilder has a similar take on the rise of corruption. He doesn’t at all deny that ANC members newly in government were susceptible to temptation – how could they not be, having led lives that provided them little or no economic security up till then? But he suggests that those who held economic power in South Africa – white business, in short – deliberately set out to seduce and corrupt the new governors. (317)

Perhaps Gilder is wrong. Perhaps he views the world too relentlessly through the lens of his years of exile and uMKhonto we Sizwe membership. But he cites some striking incidents. One is the sweeping destruction of compromising files in the old order’s military, police, and spy agencies (182-83); there are no Stasi files full of revelations to be reckoned with in South Africa. Another involved General Georg Meiring, who despite being “implicate[d] … in apartheid’s dirty tricks campaign against the ANC and other opposition forces” by the Truth and Reconciliation Commission (185), was the head of post-apartheid South Africa’s armed forces. In 1998 Meiring gave President Mandela a report alleging “a left-wing plot to destabilize South Africa”; an investigatory commission later called this document “utterly fantastic” and Meiring had to resign. (189) Then there were allegations in 2005 of plots against Zuma – based on email evidence whose “crude and sometimes ethnically derogatory language” Gilder felt was certainly not “the language of the people I know” who supposedly were among the senders (274). These were followed in 2006 by claims, in an oddly named document called “The Special Browse Mole Consolidated Report,” of a conspiracy against Mbeki, supposedly involving “former MK combatants, … Muammar Gaddafi, Angolan President Eduardo Dos Santos and many others.” (281-82) Gilder writes, specifically of the 2005 e-mail allegations, that:

I had seen this kind of thing before, most notably in the crude disinformation attempts of the apartheid regime against the liberation movement and its allies during the days of struggle, and more recently in the many attempts by former apartheid security officials to feed fabricated intelligence into the security services, government and the media. (274)

What would the point of all this have been? It’s hard to believe that anyone thought after 1994 that the old order would ever return.  Could they have thought that the ANC would, sooner rather than later, be defeated at the polls and replaced by a party more sympathetic to white and business interests? Perhaps. Or perhaps they simply thought that all that was left to them was to make the new government ineffective, on the theory that the less the government could do the more room they – these diehard opponents – would have to lead the privileged lives they still had. It’s hard to know. But Gilder’s book is a calmly written statement of the case that the ANC government’s problems are by no means all the product of its own weaknesses.

The ANC, the "armed struggle," and the Russians

Lately I've been reading about the ANC's armed struggle.* As everyone who has followed South African events knows, the armed struggle did not end with victorious rebel armies defeating apartheid troops in battle. But that obvious point may make it too easy to disregard the tremendous military challenges the ANC faced and the substantial campaign of undercover military action it nevertheless mounted. It was "armed propaganda" rather than conclusive military action, but it was quite effective armed propaganda. It's seems quite possible that the ANC’s military efforts were an integral part of the nationwide rising of black popular resistance to apartheid, and thus a material, rather than just symbolic, part of what brought apartheid down.

Along the way I've encountered something surprising: the positive role of Russians. By that I don't mean the supply of arms or money, though those supports likely were very important.

What I'm more surprised by, actually, is that the Russians emerge in these ANC stories, with only rare exceptions, as nice people. Why shouldn't they be nice? Well, because their role in the world always seemed to me to be to pursue their version of imperialism; if we became "ugly Americans" surely they became "ugly Russians."

Probably they did - but not in these stories. There must be other stories to be told, of course – the ones I’ve been reading are accounts by or about South Africans who were Communists and who were trained by the Russians in warcraft or spycraft. The South African Communist Party played a crucial role in the ANC’s struggle against apartheid, by the way, and many dedicated opponents of racism found their way to the Party. If people like Joe Slovo or Ronnie Kasrils or Barry Gilder didn't like the Russians, then nobody did. (And, in fact, Ruth First -- Joe Slovo's wife and a formidable, independent member of the Party herself -- was much more skeptical of the Soviet Union than her fellow Party members, some of whom tried to expel her for ideological deviation.)

Nevertheless. Slovo comes back from Russia with sardonic jokes he's apparently heard there about Russian politics. Kasrils learns just how much to drink before battle. Gilder, alone in Moscow for spy training, gains “at least twenty kilograms” (57) because of all the Russian food his housekeeper prepares for him. The Russians sound like pretty good friends to have.

And one thing the Russians don't do is this - an event Gilder recounts from his post-apartheid years in South Africa's National Intelligence Agency: 

During a meeting one warm afternoon in Cape Town with the CIA station chief in South Africa and a delegation from Langley, the station chief elbowed me during a break in the discussions around the corner of the venue and handed me a brown envelope with a few thousand dollars in it. He said it was for us to buy equipment. He said he needed a receipt and tore off the flap of the envelope and asked me to sign it. My hackles went up. There was no way I wanted a piece of paper sitting in a file in Langley with my signature on it. I carefully wrote: Received on behalf of the National Intelligence Agency, and handed the money over to the agency’s finance department. (204) 

Really, who were we kidding?

*In case you’re interested, the books I have most in mind here are: 

Barry Gilder, Songs and Secrets: South Africa from Liberation to Governance (2012)

Ronnie Kasrils, Armed and Dangerous: From Undercover Struggle to Freedom (2013 edition)

Alan Wieder, Ruth First and Joe Slovo in the War Against Apartheid (2013)

The complex politics of game parks

An uncomfortable footnote to our trip to a game park in South Africa in July: We went to Kruger, but not quite Kruger; instead we stayed at a private lodge on land near Kruger. The owners of a large area had taken down the fence between their land and Kruger proper, so that there no longer is a boundary for the animals, and the land is now a game reserve, with various lodges located there and offering game drives to fascinated visitors such as us. It felt a bit self-indulgent, though the folks at our lodge operated a pretty intense schedule of game rides, so we certainly didn't feel we were just taking it easy -- and it was a great way to see the animals.

Now I read, in Midlands (2002), a remarkable book by the South African journalist Jonny Steinberg that investigates the tangled story behind a white farmer's murder in another part of South Africa, KwaZulu-Natal, the following (at page 226):

[I]t took until the early 1990s for farmers to realise that beauty meant money -- lots of it. The zebra and the buck are already there. The unspeakable beauty needs no maintenance. Erect a tall fence around the wild, uncultivated land you have never used, sprinkle the valley with simple wooden cabins, lay down some dirt roads, and you have a game lodge. There is an American niche market for this sort of tourism; seduce it and you can charge in dollars.

That would be us. And that would be fine, except that the land Steinberg is talking about wasn't unused (226-27):

The whites have never used all their land. They fence off fields for their cattle, they plant vegetables in the narrow, fertile strips on the river bank. But the wild bush land has always been used by the blacks, to hunt, for its firewood and its water. It is one of the corners of the countryside the peasants have refused to give up. So for the whites to fence in the whole countryside, to claim the zebra and buck that have always roamed there -- that is no small thing.

I don't know whether the private game reserve we visited was the result of a similar act of dispossession -- whether, as my wife guessed, the white owners fenced the land and the former black users became the game drive guides. If that is what happened, it's probably not a compelling reason not to go to the private game lodges. After all, the immense, public Kruger National Park is presumably the result of similar and likely harsher dispossession that simply took place longer ago. It's also possible that the new economic relations, with the many paying jobs the game lodges create, are more just than the old ones built around tenant farming. Still, I do feel more inclined to try the public park and public facilities the next time we have a chance. Certainly this back story is a reminder -- and in a sense this is the fundamental point that Steinberg's book makes -- that in South Africa (and of course really in the United States, and probably everywhere) there is scarcely any step you can take that doesn't stir the memories and the lasting impacts of injustice.

Latest update on my list of Supreme Court cases handled by clinics last year

I've just added another case to this list, which you can find here. So far the total is 6 cases, three of them featuring a single clinic at Stanford (which won two of the three)! 6 cases is actually 7.6 % of the total of 79 "Opinions of the Court" that the Supreme Court lists on its website. It's worth adding that my list so far is only of cases in which a clinic represented a party; there are probably many other cases in which clinics submitted amicus or friend-of-the-court briefs and these too can be influential.

A contingent philosophy professor

In the New York Times Book Review today, Sept. 29, 2013, a letter-writer observes "that the ambiguity and multilayered meanings reflected in Continental philosophy are themselves the metaphysical point." The author of the letter, Margaret Betz, is identified by the Book Review as "a contingent philosophy professor at Rutgers University-Camden." Does that mean she is a professor of contingent philosophy -- as her letter might reflect? Or does it mean that her status as a philosophy professor is contingent? If the latter, is the contingency that her job might end at any moment? Or is this an expression of the contingency of everything, including but not limited to philosophy teaching? Just wondering.

The World Trade Center lights, September 9, 2011

Robben Island

Nelson Mandela's cell at Robben Island, as it appeared when I saw it last month. No toilet, no heat. And while the prisoners labored in a lime pit (which contributed to Mandela's tuberculosis, the after-effects of which he is suffering from still), it must have been quite easy for them to catch a glimpse, across the bay, of Cape Town's Table Mountain rising dramatically over the city just a couple of miles inland. The inmates were imprisoned within sight of one of the most beautiful cities in the world, while the residents of that city went about their lives paying little attention to the prison across the water.

One cheer for formalism: US edition

In Descamps v. United States (No. 11-9540, decided June 20, 2013), the Supreme Court took a stand in favor of formalism.

The question the Court had to answer was this: when has someone been convicted of burglary? The answer mattered. Michael Descamps faced the possibility, under ACCA, the Armed Career Criminal Act, 18 U.S.C. §924(e), of a 15-year increase in his prison term if he had three earlier convictions “for a violent felony,” and one of the crimes defined as a violent felony is “burglary.”

What’s a burglary? Congress didn’t specify, and different states define the crime differently. That’s troublesome, since it could have meant that the same conduct could count as “burglary” in one state but not another, and therefore that some people would face 15 years of extra imprisonment for conduct that other people did not similarly have to answer for.

To avoid that prospect, as Justice Kagan explains in the first paragraph of her opinion for the Supreme Court,

courts use what has become known as the “categorical approach”: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the “generic” crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.

Generic burglary, says the Court, requires “breaking and entering” – so if you are invited into someone’s house and while you’re there you take her priceless heirlooms, you’re guilty of various crimes but not of burglary, because you didn’t “break” into the house. Under the categorical approach, therefore, if someone is convicted of a crime called burglary which doesn’t include the element of “breaking and entering,” then that person’s conviction won’t count under ACCA.

But what if someone is convicted under a statute that specifies two forms of what it calls burglary, and the first form does require breaking and entering but the second doesn’t? When dealing with such a “divisible statute,” Justice Kagan explains, courts use the “modified categorical approach.” Under this approach, the court can look to “a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Once the court knows which form of the offense the defendant was convicted of, then it can return to the categorical approach’s assignment of comparing the elements of that particular form of the offense and the generic version of the crime. 

In Descamps, as the majority saw it, the statute was not “divisible.” Rather it was “an ‘indivisible’ statute—i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense.” Specifically, California’s burglary statute covered anyone “‘who enters’ certain locations ‘with intent commit grand or petit larceny or any felony.’” Under this statute, you wouldn’t have to break and enter – though one way of accomplishing your “entry” would be to break in first. The question for the Supreme Court was whether courts should be permitted to consult other documents (notably, the record of Descamps’ guilty plea to the original offense, in which he didn’t disagree with the prosecutor’s assertion that his crime involved a break and entry) to determine whether the offense of which a defendant was convicted must have featured a “break and entry.”

The Supreme Court’s answer is no. In other words, courts faced with an “indivisible” – but broad – statute must simply apply the categorical approach. Under that approach, if the statute doesn’t require a break and entry, then a conviction under it isn’t a burglary conviction for ACCA purposes, even if what the defendant actually did was to break and enter. As the Supreme Court explicitly says: “Whether Descamps did break and enter makes no difference.”

That’s a formalist decision.

But it’s probably the right decision. I won’t review all the arguments the majority makes, but one of them is that the alternative would be that judges in ACCA cases would have to start parsing the records of old cases to try to figure out what defendants actually were convicted of. That’s not easy. Here, for instance, Descamps’ guilty plea to California burglary charges evidently was entered thirty years before he came to face potential increased sentencing under ACCA, and what the plea colloquy shows is just that he didn’t object to the prosecutor’s description of the crime. Does that mean the judge in that case, in accepting the guilty plea, must have found that Deschamps did break and enter? One might wonder.

There’s also a constitutional difficulty: suppose we agree that it’s not entirely clear what Deschamps was convicted for. It might still be possible for a judge to make a well-founded determination on this question. But in doing so that judge would be finding facts about Deschamps’ prior conviction, and a recently established constitutional rule declares that  “‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), as quoted in Descamps. It’s quite possible that for an ACCA sentencing judge to determine the facts that underlaid an earlier conviction, rather than just the existence of the conviction (for the right type of offense), would be to violate this rule. That constitutional concern supports interpreting ACCA, the statute which provides for increased sentences, not to allow this sort of judicial inquiry along the way.

As you can see, just explaining where the Court’s formalist rule comes from takes some time. That’s worth remembering: one of the reasons that formalist rules evolve is that the system of laws is complex and elaborate. The whole system is in that sense quite formalist, and it’s not surprising that particular, and thoroughly formalist, rules evolve in various niches of this system. It’s also not surprising that formalist rules might in some circumstances be the best ones, and might actually serve important and broad goals of fairness and constitutionalism. In a system as multi-faceted as this one, there will likely be roles for many different sorts of rules or standards, from formalist to flexible.

It’s also worth recognizing that as any rule evolves, it generates subrules. The “categorical approach” gives rise to the “modified categorical approach.” Moreover, that’s not the end of the matter. The Descamps case itself asked whether a further extension of the “modified categorical approach” should be made, and while the Court rejected that modification it explicitly recognized another complication that still remains for resolution. This is the question of where to find the “elements” of the underlying offense. Must they appear in the text of the underlying statute? Or can also they be part of the offense by virtue of judicial decisions interpreting that text in some non-obvious way?  The Court reserves this question. I imagine there are others as well. The nature of legal propositions is to give rise to the need for other legal propositions.

Finally, it’s important to acknowledge that even though formalist rules can be defined and implemented, they are likely always to rest on somewhat shaky foundations. Here, for instance, the categorical approach looks to determine the “elements” of the offense in question, and the modified categorical approach looks at certain documents from the actual conviction to determine which offense was charged in a case under a “divisible statute.” But what’s an “element” of an offense, and how do you know if a statute is “divisible” or not?

Justice Alito, the only dissenter in the case, says that sometimes statutes define not “elements” but rather “means” of an offense. So a statute might provide that someone commits a crime by using either method A or method B. Is this a “divisible statute,” defining two crimes, the method A crime and the method B crime, or is it a nondivisible statute, defining a single crime that may be committed by either of two methods? Justice Alito says that “[t]he feature that distinguishes elements and means is the need for jury agreement” – if the jury has to settle on one method or the other, then those are elements, but if it can convict while some jurors believe method A was used, and some believe method B was used, then the methods are just means. (To make this concrete: Jurors typically can convict someone for murder based on his having intentionally killed another person; they don’t generally have to agree on whether he used one weapon or another one.)

To whatever extent it’s unclear whether a given underlying statute defines means or elements, it may also be unclear whether it is divisible or indivisible. If we don’t know whether the statute is divisible or nondivisible, then we also don’t know whether to apply the categorical approach or the modified categorical approach. It might also be open to question, as Alito argues, just what sort of statutes the Supreme Court’s earlier decisions applying these approaches were dealing with, and therefore just what the Court’s earlier decisions mean.

The majority responds in a footnote (note 2) that “we can see no real-world reason to worry” about the elements/means issue. That may be so. It seems to me that a legal rule can operate quite smoothly even though there may be unsolved and even unsolvable intellectual problems lurking within it. The system of law isn’t entirely coherent, and any effort to make it so is doomed to fail. But that truth doesn’t mean there’s no role for clear, formalistic rules. They do have their place, even if it in a sense suspended in mid-air.