It took Anglo-American society about 750 years to assure us of our rights, from the Magna Carta of 1215 to the conclusion of treating colonial subjects and brown-skinned people like second-class citizens, roughly 50 years ago.
It took the 21st century all of 15 years to reverse the progress of due process.
2014 turned out to be a turning point, and for that you can thank two septugenarians who wouldn’t ordinarily be seen in the same room, or mentioned in the same breath: Donald Sterling and Bill Cosby. I am not here to defend the almost certainly reprehensible actions of either of them, but in the country in which they spent the first six decades of their lives, a person wasn’t officially sanctioned until a courtroom or a credentialed judge had had the chance to weigh the evidence and determine some measure of guilt or innocence. We don’t live in that America anymore. These days, before any trial, you can be banned from the National Basketball Association, and have your property stripped from you (yes, I realize “property” is problematic here) based on a private, surreptitious recording of what was only probably your voice (certainly, one can fake a recording). These days, before any trial, enough accusations can prompt the United States Navy to revoke an honorary title.
Yesterday, the Navy’s statement read: “The Navy is taking this action because allegations against Mr. Cosby are very serious and are in conflict with the Navy’s core values of honor, courage and commitment.” Would that the Navy was so concerned about mere allegations in the wake of the Tailhook scandal of 1991! But that was the other millennium. These days, the court of public opinion is taking over what the courts used to do. These days, an NFL commissioner can arbitrarily change a player’s punishment when enough people get incensed, so you can hardly blame activists in Ferguson for trying to influence the court of public opinion. (All four cases have something in common, which would surprise no one less than Linda Williams, who has written extensively about how we wage our severest cultural wars over the bodies of black men.) But why have we lately taken justice away from the justices? What changed in this century? Five little things:
Bush v. Gore (2000) Perhaps the Supreme Court actually sided with the correct result in this case; perhaps George W. Bush actually won the Presidency fair and square. The problem was that the unilateral stoppage of Florida recounts appeared to be both politically motivated and political expediency; it was as though the court wanted, as much as anything else, to put an end to the record-setting 35 straight days of banner headlines that covered all six columns of The New York Times (back when they and other people read that as a newspaper). It was as though the Court was saying “Hey, shut up, public, we got this” – is there a better way to get the public to turn against you? The Court inserted language that the decision was “limited to the present circumstances” and yet the law has since been applied to dozens of later circumstances – this being one of many reasons that many scholars, and many regular people, consider it the worst Court ruling since Dred Scott (1857).
Catholic Church sexual abuse scandals (2002-present) As we now know, sexual abuse was systematically ignored and covered up for decades, probably centuries, and though isolated cases received publicity in the 80s and 90s, something changed after the Boston Globe’s 2002 Pulitzer Prize-winning coverage of an endemic problem. The lay-Catholic-run site BishopAccountability.org has the numbers: 2003 to 2009 saw 375 cases involving 1550 claimant/victims eventually awarded over $1.1 billion. The U.S. government commissioned the John Jay report in 2004, studying 10,667 allegations against 4,392 priests accused of engaging in sexual abuse of a minor between 1950 and 2002. And it’s hardly just an American problem. But what to think of American courts in this situation? It might be the understatement of the 20th century to say that they could have done more. So why wait for them again?
Guantanamo, drone killings (2002-present) Come on, both parties. Stop making the founding fathers spin in their graves, the ground underneath Virginia is starting to shake.
Web 2.0 (2004-present) Something of an arbitrary marker; Web 2.0 distinguishes itself from the static web pages of the 1990s internet by permitting mass user participation, extensive user comments and “folksonomy,” the ostensible “long tail” of services on demand, etc. It’s as though the whole internet is reddit (founded 2005). Even after we saw how reddit’s crowd-sourcing altered the police’s search for the Boston Marathon terrorists back in April 2013, our appetite for more crowd-sourced justice hardly seems to have abated. Yet this thirst to “string em up” exists in a strange harmony with two things that few predicted back in 2005: 1) Web 2.0’s fealty to transparency, as expressed through the sheep-like acceptance of cameras in all walks of life as well as all the personal details willingly given to Facebook and Google, 2) Web 2.0’s fealty to identity politics, as expressed through viral “shame memes” designed to expose whoever as racist or sexist or insensitive. Ten years ago, if you called something “so gay,” you could reasonably think that no one would remember two days later; now, such a thing will never be forgotten, and you may be fired over it (as Brett Ratner was, by the Oscars). The mob rules, and the mob makes the rules.
The Roberts Court (2005-present) Yes, it’s conservative, but that’s not the entire problem; people expect the Court to go back and forth a bit depending on which party’s nominated justices happen to be in the majority. Part of the problem is the bait-and-switch; Roberts was sold to America in 2005 as a moderate, but he’s steered the court to all kinds of Cheney-delighting decisions on things like voter’s rights, gun control, criminal sentencing, and affirmative action. Another part – not Roberts’ fault, though he could fix it in 10 minutes if he felt like it – is that in terms of technology, the court acts as though it’s still the 19th century. No cameras in the court, no official records kept…Americans officially own almost all of the memoranda of the other two branches of government (with exceptions for national security, and even those become unsealed on specified dates), but nothing from the judiciary. In a Web 2.0 world, what have they got to hide? And furthermore…the fact that almost none of the corporate titans who caused the recession have been prosecuted is most certainly NOT the fault of the Roberts Court (the blame there belongs to President Obama and former Attorney General Eric Holder), but right in the middle of that, Citizens United? Really, Roberts Court? THAT’S the time to tell us that corporations are people? It’s like if, the week that the Steubenville High rape photos went viral, the accused football players’ parents bought them new BMWs to drive around the school. Not even saying Citizens United is necessarily wrong, but considering the Court can choose its cases, Citizens United represents the worst possible optics, a kick in the teeth to the victims of corporate crime at the worst possible time. You can hardly blame people for, as Pee-Wee Herman put it, “taking the law into their own hands.”
Due process had such a great run! It’s so quaint now to watch old movies where the character says “I thought in this country, you were innocent until proven guilty.” Ha! It’s like watching someone say “Now don’t get sore at her, she’s a good egg, she just can’t crack wise, savvy?” Such a cute relic from another time. However, the process of killing due process isn’t over. (For what it’s worth, Sterling’s and Cosby’s and Ray Rice’s lawyers are doing all kinds of work.) Wait to see if a few more of the richest 1% get officially sanctioned for things that haven’t been officially prosecuted. That’s when due process may get its due comeback.