Antonin Scalia: Looking Backwards

BY JEFFREY TOOBIN The New Yorker

Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.

His revulsion toward homosexuality, a touchstone of his world view, appeared straight out of his sheltered, nineteen-forties boyhood. When, in 2003, the Court ruled that gay people could no longer be thrown in prison for having consensual sex, Scalia dissented, and wrote, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” He went on, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a life style that they believe to be immoral and destructive.”

But it was in his jurisprudence that Scalia most self-consciously looked to the past. He pioneered “originalism,” a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century. During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues. (Scalia’s clashes with O’Connor were far more significant than his much chronicled friendship with Ruth Bader Ginsburg.) It was not until 2008, after John G. Roberts, Jr., had succeeded Rehnquist, that Scalia finally got a blockbuster: District of Columbia v. Heller, about the Second Amendment. Scalia spent thousands of words plumbing the psyches of the Framers, to conclude (wrongly, as John Paul Stevens pointed out in his dissent) that they had meant that individuals, not just members of “well-regulated” state militias, had the right to own handguns. Even Scalia’s ideological allies recognized the folly of trying to divine the “intent” of the authors of the Constitution concerning questions that those bewigged worthies could never have anticipated. During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was “Get over it.”

Not long ago, Scalia told an interviewer that he had cancelled his subscription to the Washington Post and received his news from the Wall Street Journal, the Washington Times (owned by the Reverend Sun Myung Moon’s Unification Church), and conservative talk radio. In this, as in his jurisprudence, he showed that he lived within the sealed bubble of contemporary conservative thought. That bubble also helps explain the Republican response to the new vacancy on the Court. Within hours of Scalia’s death, Mitch McConnell, the Senate Majority Leader, announced that the Senate will refuse even to allow a vote on Obama’s nominee, regardless of who he or she turns out to be. Though other Republican senators have indicated that they might be a little more flexible, at least on hearing out a nominee, the chances of a confirmation before the end of Obama’s term appear to be close to nil.

This Republican intransigence is a sign of panic, not of power. The Court now consists of four liberals (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and three hard-core conservatives (Roberts, Clarence Thomas, and Alito), plus Anthony Kennedy, who usually but not always sides with the conservatives. With Scalia’s death, there is a realistic possibility of a liberal majority for the first time in two generations, since the last days of the Warren Court. A Democratic victory in November will all but assure this transformation. Republicans are heading to the barricades; Democrats were apparently too blindsided to recognize good news when they got it.

Like Nick Carraway, Scalia “wanted the world to be in uniform and at a sort of moral attention forever.” The world didn’t coöperate. Scalia won a great deal more than he lost, and he and his allies succeeded in transforming American politics into a cash bazaar, with seats all but put up for bidding. But even though Scalia led a conservative majority on the Court for virtually his entire tenure, he never achieved his fondest hopes—thanks first to O’Connor and then to Kennedy. Roe v. Wade endures. Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not. (These positions are contingent, of course, and cases this year may weaken the Court’s resolve.) For all that Presidents shape the Court, the Justices rarely stray too far from public opinion. And, on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. Justice Scalia’s views—passionately felt and pungently expressed though they were—now seem like so many boats against the current, borne back ceaselessly into the past. ♦

Harper Lee

1926 2016

An American Literary Legend.

Long after our times are reduced to ashes, what Harper Lee created will live on. She captured the angry bigoted hopeful soul of the United States and inspired us to make good.

Harper Lee and Mary Badham At Universal lot Hollywood May 1962

WHY SHOULD I RESPECT YOUR STUPID OPINION?

by Emrys Westacott 3 Quarks Daily

 

You have been called for jury service. The trial is complex and much hangs on the relative credibility of different witnesses, particularly those offering expert testimony regarding whether a certain medicine is likely to produce aggressive behavior as one of its side effects. A professional psychiatrist called by the defense testifies that in his opinion this effect is very likely. During cross examination, however, the wily prosecuting counsel manages to unearth a surprising, seemingly irrelevant, but nonetheless startling fact about this "expert": he believes that aliens from space landed in the Nevada desert around 1965 and now effectively control all branches of government using advanced mind-control technology. The "expert" has in fact published several articles arguing for his views in the journal Alien Watch, and is a founding member of MASA (Mankind Against Space Aliens).

When the jury eventually retire to deliberate, it is not long before these beliefs become the focus of attention. One juror refers to the expert as "that nutcase who believes in UFOs." Another calls him a "crank." A third describes him as "cuckoo." Inevitably, his beliefs about aliens damage the credibility of his other testimony in the eyes of some jurors, even though he undoubtedly has the requisite qualifications to be considered a legitimate expert on the side effects of certain medicines.

One juror, however, playing the role of Henry Fonda in Twelve Angry Men, resists this wave of skepticism. "Did anyone notice," she says, "that the expert called by the prosecution wore a crucifix around her neck? This ‘expert' may well believe that a man called Jesus walked on top of the sea, changed water into wine, came back to life after being executed, and ascended to heaven on a cloud. I hate to be awkward, but to my way of thinking these beliefs are even more incredible than the idea that space invaders landed in the desert. After all, the belief about aliens—unlike orthodox Christianity--doesn't assume anything supernatural or contrary to the scientific view of nature."

Listening to the debate, you feel yourself pulled in two directions. On the one hand, you can't help agreeing with those inclined to question the judgment of someone who believes the government is controlled by aliens from outer space. On the other hand, supposing for the sake of the argument that your general outlook on the world is thoroughly secular, you sympathize with the view that many orthodox religious beliefs are just as implausible. So you find yourself astride a paradox.

You consider both sets of beliefs equally incredible, yet you only think of one as giving grounds for impugning the wisdom of the believer.

This little scenario raises many questions. 

    • Is it reasonable to allow what a person believes in one field to affect how we receive their opinions on other matters? 

    • Are religious beliefs that posit miracles on a par with other beliefs that run counter to mainstream, scientifically informed opinion? 

    • What makes a belief rational? 

    • Should how long a belief has been held or how many other people share it make it more acceptable? 

These are intriguing issues, but I wish to focus here on the notion of respecting another person's beliefs. In particular, 

    • What does it mean to respect someone's beliefs? 

    • When and why should such respect be given? 

    • When and why might it be withheld?

The default position for most of us in a modern, pluralist, liberal democracy is that we should respect other people's beliefs. Respectfulness is a virtue, and it is associated with tolerance, which everyone agrees is generally a good thing. To not respect someone's beliefs can be hurtful or alienating and evinces a closed mind. But this common response is too simple. Not all beliefs are worthy of respect, and withholding respect is sometimes in order. There are different kinds of respect, and a belief may deserve some of these but not others. 

Already, alarm bells may be ringing in some readers' minds, since it is often assumed that respect for a person's beliefs is inseparable from respect for them as a person; so to deny the former is to withhold the latter. But I believe this view is mistaken.

Being willing to withhold respect from certain beliefs is a corollary of thinking critically—a quintessential modern virtue. This is why it is an attitude that many of the pioneering minds responsible for shaping the modern era were willing to express, and express boldly. Most often, they did so with reference to the orthodox dogmas of established religions. TJThomas Jefferson, for instance, wrote that "the day will come when the mystical generation of Jesus, by the supreme being as his father in the womb of a virgin, will be classed with the fable of the generation of Minerva in the brain of Jupiter."[1] Elsewhere he described the final book of the New Testament as "merely the ravings of a maniac, no more worthy, nor capable of explanation than the incoherences of our own nightly dreams."[2]

Respect for persons

The term "respect," when used to describe an attitude, has three main senses. 

    a) esteem, as when I say that I respect your guitar playing. 

    b) deference, as when we speak of respecting someone's rights. 

    c) acceptance of something on its own terms; we might say, for instance, that we respect some other culture's traditions, indicating thereby that we will refrain from imposing our own value judgments on them. 

This last sense, although the hardest to explicate precisely, is closest to the word's etymological root. Our word "respect" is derived from the Latin respicere, which means to look back at, or to look at again. This suggests considering or examining something carefully, paying it proper attention, which in turn implies trying to set aside one's prejudices and see the thing as it is in itself. Conversely, to not show respect is to be dismissive, deciding quickly and in light of one's own preconceptions, desires, or interests that something is of little value.

Many things can be objects of respect: laws, rights, skills, virtues, opinions, offices, traditions, institutions, environments—the list is endless. But the kind of respect that is most commonly expected, demanded, and discussed is respect for persons, and this takes two main forms:  

     a) the sort of respect we think every human being is entitled to in virtue of their humanity;

     b) the sort of respect that individuals may enjoy--or even claim--in virtue of their particular qualities, experiences, achievements, or position. 

It is a basic tenet of most modern moral and political philosophies that every human being is entitled to the first kind of respect, usually on account of our capacity for rational autonomy. Respect for persons in virtue of their humanity is expressed through the way we treat them. It is not just a matter of having a certain view of them or a certain attitude toward them; it is expressed through our behavior. It means granting them specific rights, addressing them in a certain way, avoiding treating them the way we treat non-human entities, and so on. 

The other sort of respect we accord to people is more a matter simply of viewing specific attributes positively: for instance, their skill at basketball, their knowledge of cars, their medical qualifications, their courage, their years of experience in a field, their political activism, or their supervisory position. This sort of respect can be won or lost. It can also vary in degree. Most importantly, it is quite independent of the first sort of respect discussed above. We may judge certain people to be in most respects a waste of space, with few admirable qualities or praiseworthy achievements, but we will still acknowledge their right to be treated as a human being rather than as a thing.

Respect for the right to believe

What we have referred to as a basic respect for a person's humanity is usually taken to include, or imply, respect for their right to believe what they please. Freedom of thought is, after all, an essential part of autonomy. But respecting a person's right to believe something is not the same as respecting the belief itself. This is another distinction we need to clarify before focusing in on what the latter kind of respect involves.

Pinning down exactly what respecting a person's right to believe something involves is not, in fact, as easy as one might think. Presumably it includes not making any beliefs either required by law or illegal. It must also rule out trying to force people to hold or deny a belief by methods that undermine their autonomy such as hypnosis, drugs, or surgical interference with their brains. And it would also seem to exclude threatening to harm them in some way—physically, materially, or socially—unless they conform to some approved way of thinking. It makes little sense, after all, to tell me I have the right to think what I want, but that you'll bust my kneecaps if you discover me entertaining beliefs you disapprove of.

Yet this "right to believe what you want" is still a slippery fish. On the one hand, sanctions against beliefs seem to be not just wrong but silly since we cannot verify with any certainty what a person believes. Our beliefs—as opposed to our utterances and behavior—are invisible to others, at least until neuroscience develops more sophisticated forms of brain monitoring. So even though our right to hold a belief could be violated by a law prohibiting "thought crime," the application of any such law would have to be triggered by some sort of behavior such as professing the belief, participating in a ceremony, or supporting some cause.

Respect for a belief

So far we have separated out several different kinds of respect. These are:

     (1) respect for a person in virtue of what they share with all humanity

     (2) respect for a person in virtue of their specific qualities, achievements, or experiences 

     (3) respect for a person's right to hold a belief

     (4) respect for a particular belief

A lot of people assume that both (1) and (3) entail (4); so they worry that to withhold (4) implies that one is withholding at least (1) and (3). This is perhaps what underlies much ready talk about respecting beliefs. The worry is perhaps exacerbated by the fact that withholding (4) may well involve a diminishment of (2). If I tell you that I believe my goldfish is a reincarnation of Winston Churchill, you will assume I'm joking. If I manage to convince you that I'm serious, you will probably conclude that I'm one slice short of a loaf. In other words, learning that I hold certain beliefs is likely to affect your respect for my intellect. But this reduced respect for a particular quality (2) need not affect the other kinds of respect. And the assumption that withholding (4) entails withholding (1) or (3) is mistaken, as we will see.

First, we again need to make a distinction between respect as an attitude and respect expressed through behavior. One way of failing to respect a belief is to declare it false. Another way is to make fun of it. Another way is to insult it, describing it as "baloney," "tommyrot," "balderdash," "twaddle," "hogwash," "hooey," "blather," "bunk," "bullshit," "claptrap," "drivel," "hokum," "horse feathers," or "poppycock." Each of these responses involves some sort of behavior that risks giving offence to those who hold the belief in question, especially when the belief is central to a person's life and identity as, say, religious beliefs often are. To respect a belief, conversely, could be understood as refraining from doing these things.

But the idea that we have an obligation not to criticize a person's beliefs is foreign to a contemporary liberal outlook. There may be specific occasions when criticizing a belief someone cherishes would be tactless, rude, or hurtful; so we can allow that there may be times when silence is the morally preferable option. But in the context of any kind of public forum where ideas are up for discussion, no one can reasonably demand that their beliefs be protected from dissent. 

More plausible is the principle that people's beliefs be treated with respect in the sense that they should not be ridiculed, scorned or insulted. Here the constraint is only on the manner in which they are criticized. But although the principle sounds reasonable, it is surprisingly difficult to defend as a general rule. To be sure, we may agree that we should not cause anyone unnecessary pain; and insulting someone's cherished beliefs may do this. But sometimes the pain caused is not gratuitous but an unavoidable consequence of something that really needs to be said. Besides, we also cherish freedom of expression and the benefits it brings. The fact that some people may be offended by what is said hardly seems a strong enough reason to curtail free speech. Moreover, rhetorical freedom is an important aspect of the right to free speech. Very often, the critique of a belief is more powerful and more persuasive because of the way ridicule, irony, sarcasm, and wit are employed. Think of the contributions to important debates made by the likes of Swift, Voltaire, Hume, Paine, Nietzsche, or Mencken.

Those who think that when their beliefs are scorned their rights are being violated, seem to view holding a belief as like owning a piece of property. On this view, to disrespect a person's beliefs is analogous to trespassing on or defacing their property. But the analogy does not hold. Beliefs, unlike items I own, are in the public domain. I have no more right to seeing them treated with respect than I have a right to not hearing people sing silly songs about the moon.[3] This is not to say that insulting a person's beliefs is never wrong. If it is done for no good reason, or if the pain caused is not offset by benefits promoted, then there are good utilitarian grounds for criticizing the action. In the public discussion of ideas, though, the critic, even the vituperative critic, is usually presumed to be motivated by a concern to move people's thinking away from falsehood and toward truth, and this gives the action its justification.

So much for respect expressed through overt behavior. We can also conceive of respect for beliefs (or the withholding of such respect) as an intellectual stance or attitude. This is the kind of respect being referred to when I say something like, "I respect your faith." It is useful to approach this more subtle notion of respect by calling to mind cases where many of us would, in fact, withhold respect. Consider the following statements:

    • Homosexuals will burn in hell for eternity. Moses-staff-turns-to-serpent

    • Santa Claus lives at the North Pole.

    • The earth is less than ten thousand years old.

    • The holocaust never happened.

    • White people are by nature morally superior to black people.

    • Men should have the right to beat their wives.

    • Moses' wooden rod turned into a snake.

    • Barack Obama is the Antichrist.

Each of these statements is held to be true by some people. Yet a common response—certainly my response—to assertions like these is fairly captured by the expression, "hard to take seriously." This does not apply to all, or even most claims that one believes to be false. Take, for instance, statements such as, "Bacon wrote Shakespeare's plays," or "Global warming is a myth." I may be convinced that these statements are false, but I will still think it worthwhile to argue against them. They are not beyond the pale. The claims listed above, however, are in a different category. Here I find I just cannot take seriously the possibility that they might be true. And this dismissive attitude seems incompatible with the notion that even while thinking the beliefs false I nevertheless have respect for them. Respect, as we noted earlier, suggests an open-minded attitude, setting aside prejudices, not making one's mind up too quickly but being willing to consider a claim on its own terms. Yet which of us would want to spend any time arguing with someone who claims that Barack Obama is the Antichrist or that the holocaust is a fiction?

Different reasons for respecting beliefs

If lack of respect for a claim means being closed to the possibility of it being true, then respect for a claim, logically, must mean being open to this possibility. And this seems a reasonable first explication of what it means to respect a belief. Immediately, though, we encounter difficulties. Can I not respect the tenets of someone else's religion even though I don't share the metaphysical framework to which they belong? Don't contemporary scientists respect the ideas of earlier pioneers like Aristotle and Ptolemy without actually entertaining them as possible truths? Isn't a degree of respect a necessary part of the empathy that enables us to understand and appreciate ancient mythologies, historical epochs, and alien cultures?

These questions indicate that being open to the possibility that a belief is true is one kind of respect, but it is not the only kind. In fact, there are several possible reasons for respecting a belief, or more precisely, several possible kinds of respect one might accord to a belief. For instance

    • Epistemic respect: you think it is true or might be true

    • Intellectual respect: it is part of a belief system you admire for its intellectual achievement (e.g. Ptolemy's astronomy)

    • Moral respect: it is part of a belief system you consider morally admirable or inspiring (e.g. a religious mythology that implies we are all equal)

    • Historical respect: it belongs to a belief system that was historically important (e.g. belief in transubstantiation)

    • Aesthetic respect: it belongs to a larger complex of beliefs you find beautiful (e.g. Greek mythology)

    • Pragmatic respect: you recognize that it is genuinely useful to some people, even though you can't accept it (e.g. belief in an afterlife)

There may be other forms of respect that we show towards beliefs than the ones identified here, but I suspect these are the most important. Distinguishing between them, and especially isolating epistemic respect from the others, helps us better understand ambivalences within our attitudes to certain kinds of belief. Minimal epistemic respect for a belief means being open to the possibility that it is true. And just as I can withhold respect from a certain belief without this implying lack of respect for the believer, or for their right to believe whatever they please, so I can deny epistemic respect to a belief without thereby denying it every other kind of respect. The legends about the Olympian gods, the reports of miracles performed by biblical figures, and accounts of fairies and witches, are no more credible than stories about talking donkeys or Father Christmas. But this does not mean they cannot be esteemed for their beauty or their historical significance or their moral value.[4]

 [1] Thomas Jefferson, Letter to John Adams, April 11, 1823, The Adams-Jefferson Letters, Vol.2 (Chapel Hill: University of North Carolina Press), p. 595. It should be noted that in this same letter Jefferson argues in defense of the idea that the world is the product of intelligent design.

[2] Thomas Jefferson, Letter to Alexander Smyth, January 17, 1825, The Writings of Thomas Jefferson, Vol. 16 (Washington DC: Thomas Jefferson Memorial Association,190 ), pp. 100-1.

[3] This criticism of the principle that people are entitled to have their beliefs respected is made by Peter Jones. (See Peter Jones, “Respecting Beliefs and Rebuking Rushdie,” British Journal of Political Science,” Vol. 20, No. 4 (Oct. 1990), pp. 415-437.)

[4] This essay is a revised version of part of Chapter Five of The Virtues of Our Vices (Princeton University Press).

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Moscow Just Razed Its Small Businesses and Became Even Blander

BY MASHA GESSEN The New Yorker

While most of Moscow slept Monday night, the city government razed ninety-seven small commercial buildings that housed stores and cafés. Seven more are slated for destruction later in the month. The businesses in these buildings employed up to several dozen people each, so upward of a thousand Muscovites woke up unemployed. The city claims that the structures had been erected without proper permits, but, in the months leading up to the demolition, several business owners, fearing what was to come, managed to secure court decisions affirming their buildings’ right to exist. They were razed anyway.

The anti-corruption blogger and former Moscow mayoral candidate Alexey Navalny has written that the businesses had all the papers necessary to operate—otherwise they could not have stood up to police inspections and would not have been allowed to use city water and power. Of course, he claims, these papers were obtained, like most papers in Moscow, in illegal and extralegal ways, with money and connections. The city government could thus invalidate these papers anytime—or demand bigger bribes. In fact, Navalny writes, the reason the city is going after the small businesses rather than large shopping malls is that the latter pay bigger bribes.

On the surface, the mass demolition accomplishes two craven goals: it clears the slate—and space—to collect ever bigger bribes for potential new construction, and it eliminates the competition to Moscow’s many large shopping malls, which are hurting for customers and renters. The obvious impetus comes from Russia’s harsh new economic reality. The pie is shrinking, so the smallest and least powerful no longer get their pieces.

But there is also a powerful aesthetic motive behind the destruction. The dissident writer Andrei Sinyavsky famously said that his dispute with the Soviet regime was “purely stylistic” rather than political. The feeling was mutual: the Soviet government did not like Sinyavsky’s writing either. It demanded a uniform, predictable, and regimented aesthetic. The new Russia is not, at present, a fully fledged totalitarian regime—but it increasingly feels like a totalitarian society, with its unanimity on all matters and suspicion of all difference. It wants to look like one too.

Back in the eighties, Moscow and other large Soviet cities (with the exception of part of Leningrad) looked empty and orderly. Their avenues were wider than many American highways, with sidewalks the width of a Manhattan street. Their buildings were imperial architecture on steroids, with courtyards the size of a Manhattan block and arches through which you could squeeze a few townhouses. Façades were impenetrable—buildings were often entered through courtyards—and this, combined with the vastness of distances, kept people from clogging the streets. What humans one did see generally looked the same, dressed in basic gray and more gray. The absence of private business kept what passed for commerce looking uniform too.

The first legal private commerce consisted of people standing on the sidewalks. In early 1992 Boris Yeltsin issued a decree legalizing the sale of consumer goods by individuals, and some individuals cut the decree out of the newspaper, pinned it to their clothes to ward off police, and went out to procure scarce goods for resale. Foreigners who happened to visit Russia back then will never forget the spectacle of people standing in the street holding out pieces of raw steak or fried chicken—and, perhaps more shockingly, that of others buying these goods. “Fresh meat, I just got it today!” was the advertising slogan of the era.

After a few months, the private traders’ assortment grew, along with their sense of security, and they started putting out folding tables for their wares and folding chairs for themselves. Then they started building makeshift structures out of glass, plywood, and aluminum siding. They were eyesores, though still an improvement over the sight of men with raw meat in their hands and a piece of newspaper on their jackets. The structures, known as kiosks, also provided some protection from dirt and weather for both the merchandise and the people who sold it. The sellers could now continue working late into the night.

For a magazine piece in the late nineties, I sp

ent a week roaming Moscow, cataloguing all the things you could buy at three in the morning. This included cigarettes and alcohol, of course, but also flowers, stuffed toys, and sheepskin coats. The storekeepers explained that it cost the same to pay a salesperson to keep the store open as a security guard to watch it when it was closed, and there was demand. Flowers, I was told, were bought by men rushing to late-night assignations, and the same men, feeling guilty, bought stuffed toys when they were returning home to their wives. The sheepskin store enticed middle-of-the-night customers with special two-in-the-morning discounts. The net result was that, in less than a decade, Moscow had gone from being a city where you could never buy anything to a city where you could buy anything anytime—usually a short walk from your house, because kiosks clustered around public-transport stops and outside large official stores. This felt like freedom.

The proliferation of kiosks also brought the city down to human scale. They filled the vast squares and occupied parts of the too-wide sidewalks. They put objects at eye level, filling what had been an eerily empty field of vision. Being a person in Moscow stopped feeling like being a Lilliputian in the land of Gulliver.

Over the years, many of the kiosks grew into more permanent structures, often referred to as pavilions. Successful traders erected one- and two-story buildings that connected to the city’s power and plumbing infrastructure, and soon those buildings housed mini-marts, cell-phone shops, and cafés. Some of them were still ugly, usually in a bland prefab way. Others, like a pyramid-shaped glass structure in one of the city’s most central squares, were ostentatiously ridiculous. A few used scaled-down elements of the architecture of surrounding buildings to serve as attractive bridges between larger-than-life Moscow and its people.

Over the past few years, the Moscow government has razed the last of the kiosks. Last year, it declared war on the pavilions. The owners fought by going to court, and some won. They posted court decisions on the outside of their stores, much the way their predecessors had pinned the newspaper clippings to their chests. This time, the law did not protect them. On Monday night, their buildings were razed. People scrambled to move furniture and merchandise out as the bulldozers moved in. In the morning, Muscovites from every part of the city started posting photographs: men staring at what remained of the interior of a mini-mart; café furniture in the street; a woman standing next to vats of flowers in the middle of the street; and, everywhere, bulldozers and giant piles of building debris.

It will take a few days or more to clear all the rubble. When that’s done, Moscow will look a lot more like it did in the eighties. Its residents’ colorful and often stylish clothes will look jarring against this new-old backdrop.

Twilight of the Superpredators

NATASHA VARGAS-COOPER   The Baffler

In the early 1990s a conservative criminologist at Princeton, John J. DiIulio, scanned the horizon and predicted that a new superbreed of hoodlums was coming like a demographic tidal wave. Over a twenty-year span, DiIulio forecast, 270,000 juvenile offenders would roam the nation’s streets, looking to rob, rape, or assault law-abiding citizens. Due to the depravation of the drugs ingested by their mothers, these young men would be too neurologically damaged to feel empathy; growing up, they would be “fatherless, Godless, and jobless.” According to DiIulio, these youths would prove to be superpredatory, “more terrorist than criminal.”In his 1996 essay, “My Black Crime Problem and Ours,” DiIulio later wrote, “Think how many black children grow up where parents neglect and abuse them, where other adults and teenagers harass and harm them, where drug dealers exploit them. Not surprisingly, in return for the favor, some of these children kill, rape, maim, and steal without remorse.” DiIulio’s prophecy was echoed by other respected criminologists like James Q. Wilson, Alfred Blumstein, and James Fox, who christened the future “a bloodbath.” The public at large already had an image for packs of feral black teens destined to terrorize civilians: the Central Park Five, a group of mostly black boys from gritty uptown projects who took to the park to swagger, bully, and punk well-to-do locals. When they were (wrongfully) accused of brutally raping and assaulting a female jogger, the images of glowering young black boys saturated nightly news coverage. The media, reliably, hyped up the coming adolescent armageddon and politicians sprang into action. Most states passed new laws that made it easier to try a child in an adult court. The number of children moved into adult prisons began to swell. Schools instituted zero tolerance policies, locker sweeps, and assigned armed police officers to patrol junior high and high schools.“Decency is not the same as leniency,” Chief Justice Roberts, ever the ghoul, wrote in his dissent.The Clinton administration played its part in the reactionary sentiment of the time by passing the largest, most costly crime bill in the nation’s history. Authored by then-Senator Joe Biden, the Violent Crime Control and Law Enforcement Act of 1994 allowed children who were thirteen years old and above to be charged with serious crimes; gave federal prosecutors more authority to charge minors as adults; made it legal for children to serve time in adult prisons; rendered it admissible to present juvenile crime records at an adult’s court proceedings; and, in order to make sure that kids who grew up in prison were punished as severely as possible, the Act cut off funding from Pell Grants for inmates seeking to get their college degree.“We together are taking a big step,” President Clinton said at the signing ceremony, “toward bringing the laws of the land in line with the values of our people.” Those values would come to define the current morass of mass incarceration: punitive, arbitrary, and fear-based.The youth crime bomb was a dud, the criminologists’ projection models were flawed, and the scourge of the superpredators never came to be—rates of serious juvenile crime started to go down even before these draconian measures took hold and continued to plummet over the next decade. Yet nevertheless, the infrastructure for cruelty, torture, and life-long captivity of juvenile offenders was cemented.“Thank God we were wrong,” DiIulio said in 2001, while working inside President Bush’s White House’s Office of Faith-Based and Community Initiatives. Yes, in the place of a pubescent crime wave, we got the dismantling of protections for wayward children, the subjection of thousands of teenagers to a brutalizing punishment regime, and a state apparatus where, as Justice Elena Kagan writes, juveniles could “die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate.”Praise God indeed.However, last week’s Supreme Court decision to retroactively apply the ruling in 2012’s Miller v. Alabama, meaning that two thousand people who were sentenced automatically to life without parole as juveniles are now eligible to apply for parole, is enough to make a dyed-in-the-wool atheist like myself honor the same deity as DiIulio. The decision retroactively bans mandatory life sentences without the possibility of parole for juvenile offenders.Miller v. Alabama was one of a flurry of enlightened landmark decisions to come from the Supreme Court over the last decade, including eliminating the death penalty for juveniles, in 2005, and banning life sentences without parole for juveniles convicted of crimes other than homicide, in 2010. This, topped with President Obama’s executive order to ban the practice of placing juvenile inmates in solitary confinement, is the progress toward a more decent society.In last Monday’s decision the court reaffirmed the logic of the Miller v. Alabama ruling:Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.Using the same thinking, the justices in Miller v. Alabama were able to rule that automatic life sentences without parole for juvenile offenders amounted to a violation of the 8th Amendment, the protection against cruel and unusual punishment. The dissenting opinions are worth reading for their chilling Hobbesian logic. “Decency is not the same as leniency,” Chief Justice Roberts, ever the ghoul, wrote in his:The principle behind today’s decision seems to be only that because juveniles are different from adults, they must be sentenced differently. There is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive. Unless confined, the only stopping point for the Court’s analysis would be never permitting juvenile offenders to be tried as adults.Nevertheless, common sense ruled the day in 2012 and left the door open for retroactively applying the ruling. The plaintiff before the Supreme Court was 69-year-old Henry Montgomery. Two weeks after his seventeenth birthday in 1963, Montgomery shot and killed a deputy sheriff in East Baton Rouge. Montgomery was originally sentenced to death but the conviction was overturned by the Louisiana Supreme Court after finding that public prejudice had prevented a fair trial.Montgomery was retried and the verdict came back “guilty without capital punishment.” This triggered an automatic life sentence without the possibility of parole. As Justice Anthony Kennedy pointed out, because of the automatic sentence, Montgomery’s defense team was given no chance to present “evidence [that] might have included Montgomery’s young age at the time of the crime; expert testimony regarding his limited capacity for foresight, self-discipline, and judgment; and his potential for rehabilitation.”Montgomery has spent most of his life in prison and has become, according to court documents, “a model member of the prison community,” After the court’s decision in Miller v. Alabama, he petitioned to have the opportunity to apply for parole, now that automatic sentences like his are considered illegal.The Supreme Court ruled that the decision in Miller should be applied retroactively to cases like Montgomery’s because it constituted “new watershed procedural rules” in the matter of “rules forbidding criminal punishment.”“Prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption,” Justice Kennedy writes, “and, if it did not, their hope for some years of life outside prison walls must be restored.”It’s heartening to see the emotional, psychological, and scientific differences between children and adults now firmly embedded in the fact Montgomery, and others, can apply for parole. The final step in killing off the myth of the superpredator for good? Ban life sentences for juvenile offenders, period, full stop. 

Correction: We stated that “Miller v. Alabama was one of a flurry of enlightened landmark decisions to come from the Roberts court over the last decade, including eliminating the death penalty for juveniles, in 2005.” The 2005 decision was made a few months before Roberts became Chief Justice, and the article has been amended to reflect that.

Artur Fischer, Inventor With More Patents Than Edison, Dies at 96

By WILLIAM GRIMES

Arthur Fischer, a German inventor who registered more than 1,100 patents, including the first synchronized camera flash and an anchor that millions of do-it-yourselfers use to secure screws into walls, died on Jan. 27 at his home in Waldachtal, in southwestern Germany. He was 96.

His death was announced by his company, the Fischer Group.

Mr. Fischer, a locksmith by training and an obsessive tinkerer, came up with his first patented invention in 1947, when he wanted to take pictures of his newborn daughter.

“At the time, you could only use a powder flash for interior shots, which you had to ignite with a cord,” he told the magazine Der Spiegel in 2015. “It was dangerous, and the picture quality was poor because the subject usually blinked at the flash.”

He came up with a synchronized mechanism that triggered the flash when the shutter was released. The device was bought by Agfa, a large camera company, and Mr. Fischer was on his way, coming up with hundreds of solutions to nagging technical problems over the next seven decades.

In 1958, he addressed a problem faced by construction workers and home-repair amateurs alike: how to insert a screw securely into plaster or drywall. He devised a nylon plug with a split tip to be inserted into a drilled hole. As the screw turned, the plug prevented it from dislodging the plaster. As the screw advanced toward the tip, the anchor expanded, pressing tightly against the hole. Two anti-rotation fins on the plug wedged into the plaster, keeping the anchor securely in place.

This was the proverbial better mousetrap, a major improvement from the hemp-filled metal anchors then in use. Today, about 14 million of Mr. Fischer’s plugs are produced every day around the world.

“What Bill Gates was to the personal computer, Artur Fischer is to do-it-yourself home repair,” Der Spiegel wrote in its interview.

Mr. Fischer’s other inventions included Fischertechnik model-making kits, cup holders with retractable lids, ventilation nozzles and edible play-modeling material made from potato starch.

“I am interested in any problem to which I can provide a solution,” Mr. Fischer told the German magazine Technology Review in 2007.

His total number of inventions put him just ahead of Thomas Edison, who had 1,093 patents to his name. In recognition of Mr. Fischer’s work, the European Patent Office gave him a lifetime achievement award in 2014.

Artur Fischer was born on Dec. 31, 1919, in Tumlingen, now part of Waldachtal. He was the son of a tailor. His mother, who ironed collars to make ends meet, recognized her son’s mechanical aptitude and encouraged him at every turn, helping him set up a workbench at home and buying him the German equivalent of an Erector Set.

Artur attended a vocational school but left at age 13 to serve an apprenticeship with a locksmith in Stuttgart, Germany. He joined the Hitler Youth and enlisted in the military with the hope of becoming a pilot, but he was nearsighted, short and lacked a high school diploma. He was trained as a mechanic for the Luftwaffe and was assigned to a base in the Palatinate region, where Adolf Hitler paid a surprise Christmas visit in 1939.

“I had made a model airplane to give my mother as a Christmas present,” Mr. Fischer told Der Spiegel. “Then my commanding officer said that I was the best mechanic and I should give the plane to Hitler. It was a horrible time.”

Mr. Fischer survived the Battle of Stalingrad, leaving on the last plane, and later in the war was captured in Italy and sent to a prisoner-of-war camp in England. After returning to his hometown in 1946, he found work as an assistant at an engineering company and began making lighters and loom switches out of military scrap. In 1948, he founded his own company, the Fischer Group, which today has 42 international subsidiaries, employs 4,000 people worldwide and sells its 14,000 products in more than 100 countries.

In Germany, Mr. Fischer is famous for his Fischertechnik kits — sets of nylon blocks with electric motors and photosensitive cells that schoolchildren and hobbyists have used to make machines and robots, and engineers have used to model prototypes. The first kits were given to clients in 1964 as Christmas gifts, but they were so popular that they were sold to consumers the next year.

Many of Mr. Fischer’s humble inventions led to spinoffs. He applied the principle of his wall plug, for example, to create a series of surgical plugs to hold broken bones together.

Mr. Fischer’s wife, the former Rita Gonser, died in 2013. He is survived by a son, Klaus, and a daughter, Margot Fischer-Weber.

One of Mr. Fischer’s most recent inventions is a gadget that makes it possible to hold and cut the top off an egg of any size. He got started on the problem when a hotel owner complained to him that his guests, on opening their boiled eggs for breakfast, always made a mess — the year was 1946.

DARK MONEY

JANE MAYER

Review By Susan Grigsby  Daily Koss

Indian Wells is a posh desert town in the Coachella Valley, neighbor to Palm Springs and Rancho Mirage, and known as much for its tennis stadium and golf courses as for its multimillion dollar homes. As Jane Mayer tells us in the introduction to her masterful and disturbing new book, Dark Money, it was the perfect place for the Koch brothers’ secretive semi-annual meeting of wealthy conservative donors in January 2009. Among the millionaire attendees there were also 18 billionaires whose combined fortunes in 2015,exceeded $214 billion. And while they may have had some differences:

The glue that bound them together, however, was antipathy toward government regulation and taxation, particularly as it impinged on their own accumulation of wealth.

They knew that with a Democrat in the White House, in the House speaker’s chair, and as the Senate’s majority leader, they had some work to do in order to rebuild the Republican Party. Mayer gives us a fly-on-the-wall view of the debate that was staged as part of the seminar between Sens. Jim DeMint and John Cornyn over the best way to move forward. According to Cornyn, the second-most conservative member of the Senate, the party needed to reach out and attract more members (even moderates) to become a big tent party if necessary. DeMint, on the other hand, argued that rather than expanding, the party needed to purify itself and become more committed to conservative principles. DeMint insisted that they must resist every policy that the new president proposed, to obstruct, in every way possible, the programs of the man that the people had just elected. Cornyn lost the debate.

The Kochs were unusually single-minded, but they were not alone. They were among a small, rarefied group of hugely wealthy, archconservative families that for decades poured money, often with little public disclosure, into influencing how Americans thought and voted. Their efforts began in earnest during the second half of the twentieth century. In addition to the Kochs, this group included Richard Mellon Scaife, an heir to the Mellon banking and Gulf Oil fortunes; Harry and Lynde Bradley, midwesterners enriched by defense contracts; John M. Olin, a chemical and munitions company titan; the Coors brewing family of Colorado; and the DeVos family of Michigan, founders of the Amway marketing empire. Each was different, but together they formed a new generation of philanthropist, bent on using billions of dollars from their private foundations to alter the direction of American politics.

Fred Koch, one of the 11 founders of the John Birch Society, established the Koch family fortune with a boost from Joseph Stalin and Adolf Hitler. The fact that he worked for both men and that Jane Mayer reported it has caused heads to explode in the right-wing blogosphere, but I found it to be the least concerning revelation in the book. However, his admiration for fascist governments and his disdain for our own was disturbing. 

“Although nobody agrees with me, I am of the opinion that the only sound countries in the world are Germany, Italy, and Japan, simply because they are all working and working hard,” he wrote in a letter to a friend. Koch added, “The laboring people in those countries are proportionately much better off than they are any place else in the world. When you contrast the state of mind of Germany today with what it was in 1925 you begin to think that perhaps this course of idleness, feeding at the public trough, dependence on government, etc., with which we are afflicted is not permanent and can be overcome.”

Needless to say he had a profound influence on his sons, going so far as to hire an authoritarian German nanny to raise them—which may have a lot to do with who they have become. Like most of today’s Koch donors, Fred Koch absolutely hated paying taxes and in order to avoid inheritance taxes on his estate took full advantage of estate planning schemes, including the establishment of “charitable lead trusts” that required his heirs to donate all income from the inherited capital to charity for 20 years. Many wealthy men did the same, encouraging their heirs to find charitable uses for the income that allowed them to avoid inheritance taxes. Many created private foundations that then donated the money to other non-profit charities.

By the early 1970s the John Birch Society and the conservative movement itself had become sidelined, considered too extreme for American politics. It was an era that saw the anti-war movement grow in popularity and acceptance and it began to attack the corporations behind the Vietnam War, particularly Dow Chemical, the manufacturer of napalm.

In 1971, future Supreme Court Justice Lewis Powell wrote a 5,000 word memo for the U.S. Chamber of Commerce that was a “counterrevolutionary call to arms for corporate America.”

He urged America’s capitalists to wage “guerilla warfare” against those seeking to “insidiously” undermine them. Conservatives must capture public opinion, he argued, by exerting influence over the institutions that shape it, which he identified as academia, the media, the churches, and the courts. He argued that conservatives should control the political debate at its source by demanding “balance” in textbooks, television shows, and news coverage. Donors, he argued, should demand a say in university hiring and curriculum and “press vigorously in all political arenas.” The key to victory, he predicted, was “careful long-range planning and implementation,” backed by a “scale of financing available only through joint effort.”

In the following years Richard Scaife’s foundation, which had been the largest donor to the American Enterprise Institute, donated funds to the new, overtly political Heritage Foundation. Joseph Coors was the first donor to the Heritage Foundation, when it was still called the Analysis and Research Association. Charles Koch started the Cato Institute. The Olin Foundation was a top donor to the American Enterprise Institute. And the beauty of all of these nonprofit think tanks was that the gifts to them could remain private—and tax deductible.

The think tanks changed the public’s perception, and starting in 1973 trust in government began sinking. By the time that Ronald Reagan said, “Government is not the solution to our problem; government is the problem,” most Americans were ready to believe him, so effective had been the work of the conservative movement in response to Powell’s memo.

Using private foundations with their privacy and tax-deductible status, the conservatives moved into education, with the Olin Foundation establishing what became known as a beachhead in America’s law schools. They donated funding to schools for an entirely new approach to jurisprudence that required laws and regulations to be analyzed not just for their fairness, but for their economic impact. Known as Law and Economics, it was even accepted by Harvard, and by 1990 “nearly eighty law schools taught the subject.” In 1982, the Olin Foundation provided start-up funds for the Federalist society.

The Kochs went after their own academic beachhead at George Mason University in Virginia through the Mercatus Center, a “staunchly anti-regulatory center,” according to the Washington Post. They donated $30 million to the school, most of which went to the Center.

After Barack Obama was elected the wealthy conservatives created fake populist movements that appeared to be grassroots but were actually financed by corporate sponsors, adding the term “Astroturf” to politics. FreedomWorks, Americans for Prosperity, and others  began to battle the new administration’s efforts to stimulate the economy and bring us back from the edge. Using tax-deductible donations, they were able to market test slogans that they then used to encourage movement members to demand tax cuts for the rich and a roll back of federal regulations on business. The Heritage Foundation paid Premier Networks, which syndicated Rush Limbaugh’s show, $2 million to peddle its ideology.

By the time the Koch donors met in Beaver Creek, Colorado, for their semi-annual conference in 2011, the Roberts Supreme Court had decided the Citizens United case in their favor. Apparently that wasn’t enough:

The Kochs had recently come up with a new and even cleverer way of masking the money. Rather than simply directing the funds through the maze of secretive nonprofit charities and social welfare groups that they had used during the 2010 campaign, they now established a more efficient method. They pooled much of the cash first in a form of nonprofit corporation that the tax code defined as a 501( c)( 6), or a “business league.” The advantage of this umbrella organization, which they named the Association for American Innovation (AAI), was that donations to it could be classified as “membership dues” and to some extent get deducted as business expenses. As with contributions to a 501( c)( 4), the law protected the donors’ anonymity. But as a business league, it fell outside the charitable trust purview of state attorneys general, further safeguarding the secrecy.

They collected $70 million in pledges at that meeting, and after a name change from AAI to Freedom Partners, they raised a$250 million by the end of the tax year.

For more than four decades Charles and David Koch and their assorted allies and fellow travelers have been fighting against taxes and government regulations on business. It is not surprising to learn that many of them have problems with the Internal Revenue Service or the Environmental Protection Agency.

In 2012, according to the EPA’s Toxic Release Inventory database, which documents the toxic and carcinogenic output of eight thousand American companies, Koch Industries was the number one producer of toxic waste in the United States. It generated 950 million pounds of hazardous materials that year. Of this total output, it released 56.8 million pounds into the air, water, and soil, making it the country’s fifth-largest polluter. The company was also among the largest emitters of greenhouse gases in America, spewing over twenty-four million tons of carbon dioxide a year into the atmosphere by 2011, according to the EPA, as much as is typically emitted by five million cars.

Nor is it any surprise that their fossil fuel interests have resulted in a Congress unwilling to even discuss climate change. Or that even though an overwhelming majority of Americans want to expand our social safety net the politicians are still looking at budget cuts instead, all while making sure that tax loopholes for the wealthy remain unclosed.

The Freedom Partners want to cut taxes and regulations only to increase their profits. The Koch network admits as much privately, according to Mayer, but they also know that the public doesn’t really support positions that appear to be “motivated by greed,” so they are looking for a kinder, gentler manner of presenting their goals. They have started talking about “well-being” as a way to re-frame their objectives.

After their huge electoral gains in 2010, the re-election of Barack Obama to a second term in 2012 was a shocker. But the Koch donors, now known as Freedom Partners, learned from their mistakes and pushed forward to big wins in 2014. They have learned a lot about the American electorate over the years and appear poised to apply that knowledge (as well as their $889 million) this year because they still have not won their most desired prize: The White House.

Regardless of whether you support Hillary Clinton or Bernie Sanders, Dark Money is a must read for every Democratic activist. Fortunately, it is a page turner, as Mayer combines the hard cold numbers with the stories of the people involved—and not just the Kochs and their ilk, but the people they have killed with leukemia and with exploding butane gas. There are also the prosecutors they have spied on and the journalists they have attempted to intimidate with false accusations of plagiarism. It seems as though they have no boundaries in what they consider allowable in their pursuit of profit. The purchase of the American government is only another step in that pursuit. They do not want to govern America: They just want to own it.

And we can’t let that happen.