This fall, a Hugo House class I taught committed a significant amount of my time to five plays by the great Black American poet August Wilson. A key point made in two of these plays, The Piano Lesson and Radio Golf, can help us make sense of recent (and some might say alarming) developments in the top court of the land. Wilson's point is that the law is not outside but inside of what some call society but I call culture. What this means is that the law is not something we are perfecting, but rather something made of meaner stuff.
Think of a horse. In Plato's philosophy there is the form of this animal, and there are of course horse breeders working ever so hard to sculpt a set of features that reach the form of this or that kind of perfect horse. Many are under the impression that the goal of our judges is much like the goal of horse breeders, but the state of perfection they are after is not of an animal but of the law.
Wilson, however, locates the rules of human regulation not in the realm of the eternal (Plato's forms) but rather in the realm of the fallen—that of ever-changing, ever-wandering things. This is the realm of culture, a product of what the sperm whale specialist Hal Whitehead calls ultra-sociality. The function of human culture (or hyper-culture, as Whitehead agreeably calls it) is to enhance human ultra-sociality. This is a description of culture that will not be found in Plato's forms but instead in Heraclitian change. This is why Wilson, in his best play (Two Trains Running), expresses dismay at the very idea (the form) of a blindfolded justice.
From Two Trains Running:
[...] Ain't no justice. That’s why they got that statue of her and got her blindfolded. Common sense would tell you if anybody need to see she do. There ain’t no justice. Jesus Christ didn’t get justice. What makes you think you gonna get it? That’s just the nature of the world.
During the blast of a hearing, all we heard was Amy Coney Barrett, a judge who used the most brazen of lies and the support of a white supremacist president to obtain a seat on the Supreme Court, claim, again and again, that she was blindfolded when it came to the law. But the best we could do when we heard her say such lies was, to use the words of Fela Kuti, is "look-ooo and a laugh-ooo."
But here we are. The Supreme Court is now packed with people whose ideas might represent the large majority of those in Wyoming (pop. 578,000) but not those in California (pop. 40 million). The law as blindfolded is laughable at this point. But for Wilson, the truth that US history has repeated is that the law is determined by power relationships, not ideals.
The corrupt SCOTUS majority is telling us loud and clear: if it's close they'll call a halt to vote counting and give the election to Trump. https://t.co/rxfMO9t9Th via @TPM
— Josh Marshall (@joshtpm) October 27, 2020
More important to Wilson's concept of law is that if you do not have power, which in a capitalist system is measured by the culture of money, then you cannot change the law. And so it's not the law as such that matters but those who can change it.
From The Piano Lesson:
Now you take and eat some berries. They taste real good to you. So you say I'm gonna get me a whole pot of these berries and cook them up to make a pie or whatever. But you ain't looked to see them berries is sitting in the white fellow's yard. Ain't got no fence around them. You figure anybody want something they'd fence it in. Alright. Now the white man come along and say that's my land. Therefore everything that grow on it belong to me.... [After you buy the land, the white man] come to you and say, "John, you own the land. It's all yours now. But them is my berries ... You got the land ... but them berries, I'm gonna keep them. They mine." And he go and fix it with the law that them is his berries. Now that's the difference between the colored man and the white man. The colored man can't fix nothing with the law.
A similar point is made in Wilson's last play, Radio Golf. Indeed, one can argue that it appears in one form or another in almost all of his American Century plays. The law is not fixed but is constantly fixed.
Let's turn to Wisconsin. The Supreme Court ruled on October 27 that state cannot count ballots that "arrive up to six days after Election Day" despite being postmarked before election day. But why is lateness suddenly an issue? If you sent your ballot on time and it arrived late because, maybe there is a very deadly pandemic or something, then why stop counting? If the voter has done right by the rules, their vote should be counted. It makes no sense not to. But that nonsense was the ruling of the top court of the land.
From the perspective of Wilson's plays, the judges have eyes that are big and wide open, and these wide-eyed people represent above all those with the deepest of pockets. The bought judges, which is what they are in essence, have the power to keep fixing the laws.
The only question now is this: Should those who follow laws accept the judgements of a Supreme Court that has less and less democratic legitimacy? One answer to this: Wisconsin should simply continue counting votes that comply the with rules of citizenship rights. The state should do this even more so if Biden wins the state. The message that must be sent to the Supreme Court is that democracy and not its right-packed-jacked judgments come first.