From the Journal of Anne Claire Young

1. On the Indiana Supreme Court

During review of Palin v Insight Imaging, LLC, on whether false positive medical tests, forcing further tests for access to medical intervention, ever reach jury determination of liability.

[Born into a well off Republican family (with significant holdings in insurance, oil, and finance, her father twice elected as Indiana’s Attorney General), Anne attended Vanderbilt as an undergraduate, then sat law at Princeton. Immediately thereafter she studied ancient common law at Oxford for two years, then moved south to University College London where she held an instructorship for a year. Abandoning academics, she returned to Indiana, establishing a corporate law practice, followed by two successful runs for a seat on the Indiana Corporation Commission. Once more in corporate law, she accepted nomination to the Indiana Court of Appeals and, later, the Indiana Supreme Court. While her pedigree and career seemed stellar conservative, she held a private love for the common law which would remove her thought from traditional judicial conservatism, viewing Apprendi v New Jersey (2000) as paradigmatic constitutional interpretation. Sitting on the U.S. Supreme Court, she advocated Republican Free Labor as the original impetus for “conservative individualism.”]

I’m on the other side. He sits as isolated as television, looking out, seeing nothing, much as we. We glance, moving past, towards destinations generic, he beyond all destinations, a here which is not.

“His head toppled off, you know. Skin torn away, white purity underneath. Skull teeth beyond grin, not inviting us to our end, but telling us we are layered, that the we is the layering. We are not the corpse; what else are we not?”

In his case at University College London embalmed Jeremy Bentham sits, head fake, body real, skin tight hand topping cane, his will still honored, displayed to youth who know only the fictional death which nonetheless rolls the world.

“Good thing it fell. Looked like a mummy wondering where the horror shoot is. Not that he is noticed much. See someone transfixed before his case–likely an American.”

Why did he do it, place himself in the future physical, more than his written word? A joke, I’ve been told. Maybe on himself. He devoted himself to the rationalization of the law, clearing its arcane paths, proportionalizing punishments, blotting out the tyranny of anonymous decision known as the common law. Yet today his mummy more seen than his words. Anonymity is the final form of power. No idol his corpse against that. Stamp the world to find yourself shelved for easy reference and loss. No different than a common law decision. That which you abhor shall absorb you.

I’m on the other side.

Me too, he would say. There’s only the other side. I am like a book picked up for some while, gone when you put me other. God’s physics the law is not, young lady. I would be Newton, giving you all for ever. But that post is already taken, by Darwin, good British victory; and see what happened to valiant Marx’s rush to top the hill? Very messy, that. The world absorbs us as common law, roar as I might. So here I sit emaciated to show you roar distant.

 

And what of Plato, dear Jeremy? Not Darwin enough for you?

 

How many Plato’s did Plato silence? Is he Darwin ancient or kept this day to refute and dodge? I sit before you evidence that nothing survives its name–and name is never one’s own.

Volumes of cases coherent only in anonymity. Generalization possible because nothing dominates. So too the judges deciding, as obscure as those before their bench, anonymity the final form of power. To quash liability makes the world a corpse on display. What could be more Republican than freedom voiced fading distant in unblazed trail?

We are all the other side, the common law built against the singularity of wall. Your lesson, Jeremy, is there is no you to be.

Let them plead, let them hear, let them say, Crown law with no promised eternity. In anonymity comes the world beyond the death of us all.

[Young dissented in Palin v Insight Imaging, LLC, the majority holding that medical tests are inherently uncertain, and a sophisticated consumer should know this going in. Liability suit threatened test avoidance where true results would be missed; other patients should not pay for the discontent of a few. Young argued not for unlimited tort in this area, but believed that the medical industry’s failure to provide internal financial redress of errors left the plaintiff paralyzed in law; absent institutional relief, the law cannot forsake the individual where life and its quality are the stake. The majority correctly pointed out that Young’s solution would simply stimulate suits over the form of “voluntary” institutional redress and, in any case, overreached the powers of the Court. She remained silent to this retort.]

—

From the Journal of Anne Claire Young

2. On Suzuki Court

Evening, in Chambers

otherwise undated

Dark without, dark within, save for the lamp on my desk. Clumps of ancient texts, translations of translations, shadow my hands: the common law, a fortress come unglued. My clerks are rightfully gone to other worlds. In darkness surround I set before my notebooks, wonder how an artifice of planned obscurity could convince in an era of instantaneous value. Yet the words are there:

No fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law

I have kept this vigil of the common law some years now, wondering how to convince my colleagues to forego power in favor of the naive–mean or kind, blind or not, still naive. In this Court relinquishing power is itself power; but not for the courts below. Such is my hope: that the original largesse of the Crown may entice my brethren. But Crown reasons are gone; new ones must be made.

A knock. Oh no.

“Come.”

Yes, Suzuki sticks his head through the door, then the rest.

“Anne.”

“Hello, Ben.”

“Ben. [Associate Justice] Rachel [Colleen Whitehead] still calls me ‘Chief Justice.’ Which gives more respect? Well, all I do is it in the middle of the group photo. Hmm. ‘Chief Justice’ gives more respect.”

“Ben?”

“Oh, yes. It is dark outside. In here too.”

“I know.”

“You have Seldon Society texts! And they’re open! Earliest Common Law Reports. Pleas Before the Common Bench. Eyres. Glanville. Bracton. And before them all–Domesday.”

He circles my desk.

“You are an archeologist! In a cave.”

“So it feels.”

“Telling us what we’re made of. Professors do this, Anne.”

“To no avail but their own kind.”

“Mostly.”

“What’s the point of history if unapplied?”

“Ah! The common law is applied history!”

“Yes, Ben. Or so I think it could be.”

He blinks.

“Where your Whitman?”

Oh no. No verb.

“Whitman?”

“Whitman created an alternative Bible.”

“There is neither poetry nor religion here, Ben.”

“Ha! You have many old texts. The texts are closed by history. You would force many meanings from them. Others would do so in turn, if you succeed. It would become important, regulating lives. That’s a Bible.”

“I would create something beyond my control.”

“All creation is beyond us.”

“Where the poetry, Ben?”

“In the meanings your force.”

“Meanings are found, not forced.”

“I beg you–forcefully found.”

Why does this make sense? And why should it matter? Who would, could I tell so it matters?

“Ok Ben. Why Whitman?”

“Ah. Leaves of Grass. He created that. An alternative Bible, closed by one man, in one life. Only immense arrogance could do that.”

He walks into the room’s outer dark.

“Abandoning the permanence of Heaven he had no choice but to distribute his arrogance widely in the greater elsewhere. You can see it in the first poem of Leaves.”

Back to my desk, he pulls out a pocket notebook, thumbs through it, bent over my lamp.

“Here:

Life immense in passion, pulse, and power,

Cheerful, for freest action form’d under the laws divine,

The Modern Man I sing.

“First lines. Shows I read Leaves of Grass. At least first lines.

“Life immense in passion: immense arrogance. He gave it away in words read and unread across generations. You know, Anne, in these lines lies the pulse of American common law. Singing Modern Man after Civil War. Singing Modern Man after 9-11. How to do this?”

He rights himself, drifting toward the dark.

“Only the dead can tell it. Keep listening to the dead in these books, Anne. They must be hoarse for trying to speak.”

Silence. I start. Is he still here?

“Ben?”

“Ah, yes Anne.”

“Sometimes I wonder how you were nominated, let alone confirmed.”

“I still wondering. Big mistake! Look at me here. Well, if not in the dark. No, better to be exact. Probably Big Mistake.”

“Umm, why did you drop by, Ben?”

“What? Why drop? I forget! Then I should leave. Must go sit in the middle to earn title ‘Chief Justice.’”

The door closes.

I sit as before, now slightly apprehensive that whispers surround me in this dark.

—

From the Journal of Anne Claire Young

3. On the Indiana Supreme Court

A Federal jury in Florida fails to convict a US resident Palestinian professor on several counts employing the Patriot Act, 2005

Truth is a patchwork, a tapestry only partially coordinated in its pieces. The jury speaks in yes and no, and the details of their patch, the trial in all its particulars, fades with their pronouncement. A single color remains, path to that color gone. We are left with an abstract quilt of solid shapes, anonymous, aloof. Shapes soon forgotten. We are left with a quilt of vanishing patches, patches meticulously made, without warmth; yet our only protection from the cold we bring.

Hard to trust a vacuum. Hard to trust a promise that strangers will look at us and know what to do. Oh, but when it happens, when it happens–we know we are not alone. When the verdict comes, when we are recognized as embedded in our lives, then we know there are others. Then our life has an elsewhere, in others. A terrible price, the trial, to find that out. The vacuum we call jury, where life is assayed and justice tempered, is as formless as you or I. It is the place where law stops and consequence begins.

Six to twelve people tell us what we are, what we shall be. Not surprising, that. Each day strangers tell us what we are. Strangers judge us because we live as strangers. It was not always so; and the jury were not strangers, either. Our jury is not what it was. We are tethered to a world long gone.

Ancient in common law, the jury knew all, or made all it knew all there was. Itinerant judges came and were not surprised to hear acquittals, acquittal where the crime seemed gone. Months passed between charge and trial, months in which guilt and redemption were defined and performed. Justice arrived to find the case no more. Conviction was threat to solve the matter before arrival of the Crown. Jury nullification was ancient, foundational, no derived rebellion against law. Yet the law constrained local redress of grievance; formal accusation, portending conviction, also protected the accused until trial. Only so far could locals go; one could resist one’s peers, pleading before itinerant Crown judge as final gamble. The accused could refuse nullification by refusing demanded redress.

Nullification was compromise between locale and Crown. Controlled rebellion producing a dollop of justice. The Crown as judge nullified at the margin the brutality of local retribution, collecting fees for this favor of moderation. Prospect of jury formation could curtail the influence of local dominants: a greater breadth of the (male) population must acquiesce in proscribed punishment. Else the accused might take his chances with the jury without performing pre-trial community absolution. A latent threat to nullify local powers if these demand too much. Nullification, first a favor of local power mediated consensus, could become rebellion not against Crown but against price demanded for local largesse in verdict.

Anciently the jury was no rational machine for identifying the perpetrator of crime. The verdict was more akin to electoral outcome, cumulation of social contention perhaps months in the making. The accused might find himself the least important facet of trial otherwise hidden. The common law evolved, over centuries, to tame this jury; to eviscerate the social process which was jury as outcome. Crown justice demanded a rational machine as the consequences of verdict became increasingly less geographically isolated. A truncating process of centuries, dramatically reversed in the American colonies, where distance reigned once more supreme. There the jury as electoral process recovered, prominent before and after Revolution. The common law enshrined in the 7th Amendment is not British of that day, but rather of the jury unfettered as social process. Our law has evolved by ignoring the 6th and 7th Amendments in extreme.

Now the jury is anonymous to itself and the greater world. We play by rules in anonymity, in roles isolated from the living person. A mirror of our life: more freedom, no home where you are truly known. The jury deliberates by negotiating how these abstract rules apply to the case–yet residual nullification remains. A Florida federal jury has refused to convict a U.S. resident Palestinian for violating the abetting provisions of the Patriot Act. Supporting a charity which is said to support terrorism is an offense, claims the State. The jury could not agree. A causal chain of innocense might be there, violating the rules of guilt in this anonymous society where aid defuses in unknown ways.

This is nullification, now against the State as Crown. But the ancient jury feedback between verdict and community norms, a feedback recovered in this country during the Colonial era, is gone. Each jury makes a solid color which fades into air. The State may come to try similarly until conviction is won. There is no ratchet of memory to keep the State at bay.

Tethered to a dead world, the jury refuses death. It remains more than abstract judge applying fact to law. Guilt remains a relation of facts to law beyond mere presence, embedded in the necessities and traps of livelihood. A relation concrete in the instance but undefined otherwise. A relation consequent of the social relations flared in the amorphous moment of a jury of strangers forced to create an imaginary world of right and wrong.

What freedom there is is in the forcing. Mostly the jurors will do what the law dictates, believing conformity their only long term hope. But they may not. In those moments of almost silent rebellion the past revives. In those moments the law is more than legislation and judge referee. In those moments justice lives, right or wrong, as raw as the last paycheck in a canceled life.

Our written law has struggled mightily to quash those moments. Our failure marks the true genesis of law: abiding elsewhere, the law has no master. A revolutionary principle, briefly risen in Florida this day.

—

From the Journal of Anne Claire Young

4. On the Suzuki Court

Slightly before Nonacs v Selten decided

“Do we do it too?”

I look up from my crafted salad. We are at the kind of restaurant Justices are supposed to attend, the kind of restaurant frequented by voyeurs of power. We, Anthony and I, are on the menu. The certain execution of our pen enthralls those who could buy our homes as a graduation present for their children. Of course, I could too. But not Anthony, his wealth just adequate for the required housing. Faces occasionally turn our way, enjoying the proffered morsel. Will they still come to nibble when they know it is uncertainty I seek? And not just I.

Anthony is annoyed. I gaze at wealth, not him.

“It? Do we do what, Anthony?”

My loss was not in reverie. He does this these days, as though you are part of an internal dialogue of his mind. He is different of late. His faith is in rebellion. Not lost–in rebellion. I see [Associate Justice] Rachel [Colleen Whitehead] eye him warily at conference. She senses–what? Not faith under siege. Faith demanding action. Something she knows well. As do I, Rachel, as do I. To monopolize faith, even to restrict it to religion, is to declare some chattel. It is not religion which deeply worries. Those that follow rules can be contained. It is faith we fear, unarticulated voice raw. And well we should–fear mine, fear yours.

Anthony is trying to speak. I do not think this a new rebellion in him. Before his struggle was silent, played in the quiet of books and private pen. But a Justice’s pen cannot remain private.

“There is a Sura in the Qur’an dealing with women. It tells you what to do when your wife is in error.”

“Tells me what to do?”

“Well, no. Me. That is, the Believing man.”

“Are you converting, Anthony? What a news item! Catholic Justice becomes Muslim. Impeachment tonight.”

“Er, no. The husband. First he is to reason with her. If that fails, he is to deny her the pleasures of the bed.”

“Ah. Perhaps Allah is providing succor for the wife.”

“Anne!”

“Sorry. Continue.”

“If that doesn’t work…”

“Hmmm..?”

“He can hit her.”

“Ah.”

“The passage can be a sore point when speaking with Muslims.”

“I imagine. So. Do we beat our wives too?”

“No. That’s not what I meant.”

“We do.”

“I know. Everyone beats everyone.”

“Now I see the beauty of Afghan law. Shia wives may be starved if they deny sex four days running. Profound equity. Sustenance for sustenance. And an improvement on Allah! No violence, just the nonviolence of starvation. We must talk more often of these things, Anthony. You clarify the news. Is Allah Sunni or Shia? Beat or starve? Profound discourse awaits.”

My Quixotic quip turns his face away. A fault of mine. Engaging an enemy not present, alienating those here.

“But you meant something else. What?”

He will go on. My flak aside, he will go on.

“When I asked about this, I was told, by just one person, mind you, that the command only applies to true Muslim men. If a man follows Islam, his rightness will always be seen; if a woman follows Islam, she will not object to him. So among believers, who are only those to which the command applies, there will never be a hitting.”

“Then why is the commandment there if never to be used?”

“Which is what I asked.”

“And?”

“Irritation. You seek perfection from men. The commandment is there so the prior options will be taken seriously. Allah, mercifully, sees the weakness in men.”

“So, beating is an option precisely because it is never used.”

“Yes.”

“I’ve heard economists talk like that. Are we Allah bashing today, Anthony?”

“No. They import the entire Qur’an into the command by saying it applies only to Believers. The entire document mediates the command.”

“That’s what we do.”

“I know. We don’t discuss when you can beat someone, but we do discuss when the State can execute.”

“Difference recedes when we look at ourselves.”

“No, it doesn’t. We’ll make a difference before we’re done. Difference everywhere acting the same.”

“I hope you’re wrong, Anthony.”

“I have to be. But, when I look at the world, it is very hard for me to see where I am wrong. My hope lies in other people, the very people who seem so very much alike.”

“Maybe its not in people but in what they say where difference lies.”

“Convenient for us, Anne.”

“That’s why I said it.”

“We’ve turned off obligation of contract.”

“Mostly. But to balance provisions does not require a divine consistency.”

“Obligation of contract wasn’t balanced. It was just turned off.”

“No, it was understood into oblivion.”

“Divine consistency. Doesn’t Scalia hold that view?”

“Now Anthony. You merely share the same name.”

“I am annoyed by those so near me, but necessarily so far.”

I sigh. “I know. I am different because you are here.”

“Should be an advisory when accepting confirmation. ‘Warning: you will not be what you think you are.’”

“Excepting [Chief Justice} Ben [Suzuki]”

“Only because he says he knows not what he is.”

“Good strategy.”

A pause. I have exhausted my supply of raisins wrapped in brandied apricots. Anthony seems to have been overwhelmed by the presentation of his meal. It sits as a demonstrator piece.

“Anne?”

“Yes?”

“Core to discussion of the Qur’an–among Believers–is prior agreement that it is perfect. Fault always lies in the person, not the words.”

“So with Jesus.”

Pause.

“Yes. And our Constitution.”

“We have amendment.”

“Not much in application.”

“No.”

“Anne, if we did have amendment, would our community sunder?”

“We have no single community.”

“O’Connor would say otherwise. In law we do.”

“I am not O’Connor.”

“No, you’re not. Anne, can we accept imperfection?”

I looked at his untouched meal, dab my lips with my silver edged napkin.

“We’re going to have to if we expect them to.”

“Them?”

“The war, Anthony, it’s always about the war, isn’t it?”

He pauses, eyes on his perfect meal.

“Yes.”

Is our claim of advance the imperfection of amendment? Is our success in our stumble, in a faith that divinity cannot be written? In falling, we step. An old metaphor. A principle of constitutional implementation?

How to preserve surety with amendment, with change? That, always, everywhere, is the dilemma of founding documents. Those ancient of days have advantage: their tensions of creation now past, create fresh ambiguity to new purpose. Or so I devote my hope. To documents ancient, sacred, imperfect. An American religion of liberty celebrating imperfection.

—

From the Journal of Anne Claire Young

5. On the Indiana Supreme Court

At home

Five Guantanamo prisoners, held for five years, plead guilty to conspiracy associated with 9-11-01. Their purported leader declares we do not want to waste time, describing the death penalty, applicable to terror, as “martyrdom.” The presiding judge is to decide whether guilty is an acceptable plea. December, 2008.

A trial is theater. Less so than in days when community could not be picked at market. Much less so. Now our lessons come in movies unending, so numerous and loudly present as to shunt our memory into forgetfulness, ready for the next installment–please come, please. We can only hope, not knowing we hope, that the masters of tale are on our side.

What was done in hunger and fear now is constant in the mind. The destruction of lives or lesser graded fate, where gossip solidified into reality, now plays each night among the fictional which transmute not into the real, no, we know that difference, but shift the real into the cushioned, compartmentalized endings of moving fiction. We mostly no longer live the consequence of moral verdict–not even the verdict of war. Our ineffectuality is our pass through life. Even the great traumas of local being have been removed from distasteful decision; it’s your problem, never mine.

Only when roped, much as in ancient Athens, but now computer abstract and clean into jury service do our comfortable voyeured decisions of no consequence bring disquiet. In movie we are omniscient; before the witness chair, not. The jury still contends in itself for story made real, but now more a clash of movies wrought than lives encountered. We live to place the lie, pivot of the script, and perhaps would not know what to do when two truths clash. Make a lie, place a lie, screenwriter’s script, make a verdict and go home, evening in movie to relax.

What was it like, before the false continuity of moving pictures, when all there was was life of family and neighbor? Was the jury different when in night as well as day only reality confronted? Did personage known apart from disposable story change the made real of verdict? Anonymity of movie audience has become anonymity of modern jury.

The modern trial is now mostly without audience, this the quilt of law, theater only to jurors soon to forget, their choice distrained from livelihood and happiness. Trial to verdict persists because it abstractly must, free floating promise of social stability, untethered to our lives, there only because it has been there.

Our trials have become theater cobbled, theater which changes nothing but the actors’ trajectory unwatched, of no import to an audience legally best when numbly dull. In common law a trial was a Shakespearean thing–and there was reason to ban performance at the Globe, to licence mostly through exclusion theater traveling, bursting into worlds where otherwise right alone is said. In trial and theater right itself is under contention. No wonder we have dulled audiences in both to observers from some other reality.

Now our personified nation finds the theater of trial usurped by those who know script more real than we. In Guantanamo the accused have no peers. More true than not in criminal courts, which may tell us something of the social role and regulation of crime in common law ancient. But those in Guantanamo are inherently beyond crime, beyond social regulation, a species disparate, as are the mentally ill. The military panel summoned to convict not our conscience but men of foregin smell, far distant in social reality from the gandered accused, can do little more than type to species. Plea to court is beside the point. At no point can a military jury construct the social world in which the accused, by virtue of his court presence, is purported to live. Definitionally, this jury cannot interface morality and the law.

Definitionally, definition no more evident than in the political use of suicide, an irrationality which types the species we fight. When the penalty is death, as in conspiracy to commit terror, the only rational plea is not guilty. A guilty plea should be welcomed–the man has typed himself. But this plea is also a political use of suicide, that which we combat. Our theater has been usurped, perhaps because we have adroitly removed audience entire, military judge director engaged in perpetual rehearsal where the play’s goal is to vanish from memory, save for a fine feeling of propriety concluding.

Should a guilty plea be accepted? In consequence, it is irrational, so happy typing outcome. But there is no struggle for justice, no jury verdict in repulsion to foreign species, no presumption the accused is like us until proof arrives otherwise. Our theater risks failure of its well worn plot. The judge could direct a plea of not guilty, but this in itself requires a distinct finding of irrationality underlying the guilty plea. What else could cause this irrationality of proclaimed uncontrite guilt but the despair of five years of uncertainty with no end projected until this grace of tribunal? But if so the military prosecution comes with tainted hands; how can a judge condone trial of a broken mind?

Our theater changes hands, the resolve we fight now directing, death by guilt another suicide bomb.

—

From the Journal of Anne Claire Young

6. On the Indiana Supreme Court

At home

Upon nomination to the United States Supreme Court, before traveling to D. C. for confirmation (Benjamin Suzuki yet to be nominated).

[Unnamed, this entry appears to refer to the broadcast science fiction series Dollhouse, c. 2010, where young, mostly beautiful, people are bought out of severe life crises at cost of six years of their lives; their minds are erased, replaced with temporary personalities of remarkable abilities, pliant to well paying clients (so “dolls”). Incongruous that a woman of such professional standing, just nominated to the U.S. Supreme Court, should attend such a plebeian product. Self editing for social presentation should have removed any such interest. That social process here failed portends her future, public, Free Labor stand on the Court, where potential supplants propriety. Consider how she uses Dollhouse for private inspection herein.]

She will be what we want. She wants this, memory wiped until only perfection remains, genes and experience quashed for the tableau of writer’s pen. A television episode portraying a television episode. Told she is comic book hero, she is, laws of physics contoured to story every act perfect for writer’s outcome, steps scripted for exit never realized, same as we to our God. Episode fades, her place as indistinct as heaven.

But she would remember her scripted pasts, pull her being which was joyous submission into manipulation of life ever unowned; pull her being into remembered past made present called actress. An actress playing the actress she is, writer struggling to become God through someone else’s self-reference, vehicle of good show used to break fantasy, audience astounded to find this player is as they.

At fade she sits on a park bench, at a children’s playground, nighttime, episode done, all the props of life ever provided, she the locus of remembered effort, the pause between scripts. Somewhere out there people must exist, making, placing the props before her, really living to this end. But she has yet to encounter them.

Nor have I.

—

From the Journal of Anne Claire Young

7. On the Indiana Supreme Court

At home

Vignette on a movie

From Extraordinary Measures, depicting a science race to save two children with Pompe, a variant of Muscular Dystrophy, where the genetic inability to catalyze muscle chemical waste atrophies muscles and expands organs, leading to death by age 9 or 10. At film’s end two siblings, aged 8 and 9, are given an experimental enzyme which, if effective, should decompose the waste into sugars. Later the children, still frozen in their hospital beds, are seen laughing uncontrollably, in a sugar high.

Imprisoned in muscle they laugh unwilled, without external referent, enslaved to science, victory or defeat irrelevant, joyed by the terror of cause indifferent to the perfection of family which is God. Floating moment, success will come later, when science retreats, leaving them terrain uncaptured in which to walk, ignorance ever the ground of our being, our collective past a banishing of all cause to have a perfect now. So send the scientist, terrible priest in necessary banishment, into the unknown we deny is there, he to be later recalled when freedom can only be found in shackle.

In world play necessity flees, but on a tether, who masters ever unclear. Life lived is not understanding, God’s trump on cause, cause’s trump over God.

—

From the Journal of Anne Claire Young

8. On the Indiana Supreme Court

At home

Vignette on a movie

From Me and Orson Welles, centering on Welles’ production of Shakespeare’s Julius Caesar in 1937, employing quasi-German Fascist uniforms and contemporary business suits for the stage crowd. In one scene, Welles has a ragtag poet, paper jottings stuffed in his pockets, confront a suited crowd. Shouting “I speak not of Caesar!”, the poet is inundated by suits flowing on stage, he pushed to back wall, lost to sight. The suits then rapidly depart, poet vanished, no exit discernable. The play’s audience gasps.

Gasp: rehearse your role in mind, well suited, for the evening performance. Poet unread gone, his trace endorphic jolt of satisfied understanding, faceless suits on stage rushing off to become well placed audience. Wait for the thrill, it will come, on the street, at the office, in partied delight: the vanishing, the other existence, which becomes surety of place for us. So Shakespeare paid his bill, Welles drunk eyed watching his audience explode standing in ovation, not a face in the crowd. Shakespeare, Welles, gone; audience still thrives.

—

From the Journal of Anne Claire Young

9. On the Indiana Supreme Court

At home

Vignette on a movie

From Sin Nombre (“Nameless,” “Without a Name”), depicting a Honduran family traveling the rails of Mexico, hoping to sneak into the United States. Living atop a railcar, one morning their train slowly travels adjacent to a citrus grove. Pickers throw fruit onto the roof, laughing, raining a meal on travelers unknown.

Bounty is cause undiscerned. Harvesting miracles they make one; these who channel opulence unreckoned trickle a little potential into escape. Just a little sustenance, not enough to matter on either side, common currency of hope. God on the ground, too close to see, as helpless as you. But jobbed, a family to feed in just getting by; out there, where trains go, they go too, traveled in other desperation, trapped in flow incomprehensible, same as you.

Material flow unowned, bodies bricking the channel. In occasion one opens a hole in itself to trickle a little creation elsewhere, this God’s face, pockmarked in holes, only there because of the prison he made to be.

Such a bounty that lets them travel a little longer, towards their own harvest, where others not quite paid will throw a few to hope on the gone. Bounty is cause indiscernible, God trickling himself ever for later satisfaction through escape.

—

From the Journal of Anne Claire Young

10. On the Indiana Supreme Court

At home

Vignette on a movie

From The Fly Boys, where, near movie’s end, two pre-teen boys, plummeting parachute-less from a plane, are rescued by their physics challenging uncle-hero, clinging to him as they drift to earth under his sole parachute.

Childhood perilous fall to ground unknown, adult stretching to capture the past, to erase the path to here through someone else, fractured time rocking itself to gentle landing, mutual grasp the only ground upon which to stand.

—

From the Journal of Anne Claire Young

11. Confirmed for the Indiana Supreme Court, yet to be seated

Vignette on a movie

From Jake’s Corner, Americana recovery set in a 50 odd head town in roadside Arizona, ending with a voice over that, while God’s ways are not ours, there is solace in the end.

God descends in narration, covering fragments of past entwining into a present, a place of steps, a way of stepping, upon life unlived save in voices of telling, tells islands in darkness, self illumination for others, speaker still awaiting sight. Telling to become voice over, to rise high and make a why: there heaven is, soaring for others, voices the firmament, weaved within mutual ignorance. So God descends unawares, just outside the window, film for others, come, believe.

—

From the Journal of Anne Claire Young

12. On the Suzuki Court

During internal debate on whether to review Doe v Roe, latter heard as Doe v Dawkins of the Superior Court of Alaska.

[related document:  Cases from below:  In the Superior Court of Alaska: Doe v Roe]

In the hall [Associate Justice] Henry [Mitland] stands, head tilted up, gazing at a far high corner at hall’s end, where forces of fall buttress one another to make our cave against ourselves.  Perhaps that’s what jurisprudence is, a collection of sticks so propped internally as to have not fallen–yet.  [Chief Justice Benjamin] Suzuki would disapprove:  Jurisprudence bad story–Justice props itself up in perpetual fall!  Story is just the present shift of sticks.  Bad analogy–sticks.  Means everything must eventually fall.  Justice is dedicated to fall’s denial.

Henry is more concerned with the architect’s never fall.  A slight smile on his lips, he turns to find me staring.  Perhaps at a different kind of never failing joint.

“Anne.  Strange case this daughter of Roe.”

My shields go up.  Men and abortion.  All for it when they’re randy; all fatherly when fatherly is all that’s left.  [Associate Justice Rachel Colleen] Whitehead stays a legitimate abortion request in chambers and asks us to review, knowing the fetus would come to term before we decide.  The absurdity is patent, yet she is making the rounds with some apparent success.  She seems to have forgotten that I am a Justice too.

Henry continues: “A contract to birth a child for another, with priorly forsaken maternal right to the baby.  Now she wants out of the contract.  Roe v Wade [410 U.S. 113 (1973)] protects her.  So there really wasn’t any contract.”

“Doe can sue for return of provided compensation.”

“What if the body aborted naturally? Not then. In fact, the contract holds Doe responsible for medical care in such eventuality.  Doe entered the contract in good faith, fronting a monthly stipend and ongoing medical coverage.  But Roe, our Roe, is under no obligation to fulfill her bargain save for monetary return which, if she is without funds, is rather moot.”

“That’s the law post Clyatt {v US [197 U.S. 207 (1905)]”; archival note:  see Cases from below:  In the Superior Court of Alaska: Doe v Roe}.

“If she births and decides she wants the child, is Doe’s remedy the same–give me back my money?”

“Yes.”

“Doe is the biological father.”

“Roe lived with the fetus for months; it was part of her.  Assuming she goes to term.”

“Yes.  Then there is no contractually defined property remedy, solely because of gestation.”

“Infants are not property.  An abusive mother will have her child removed.”

“So Doe’s contract is a contingent transfer of parental interest which may or may not be recoverable in money.”

“As natural father Doe retains a parental interest as well.”

“Not if the fetus is aborted.  Abortion here is the unilateral removal of pre-agreed parental interest.”

Men.  A few minutes is equivalent to months.  Oh, they will tell you how long it takes to get to those minutes; but so for us as well.  They are distant from procreation and would treat us as cattle to compensate.  The decision to abort is a self-severance, difficult for something which just deposits sperm and then has the option of galloping away to understand.  I can hear [Associate Justice] Scalia:  Self-severance?  Sounds like an attempted suicide or mutilation. And we outlaw both of those, don’t we?

“Anne.”

My glazed eyes snap back.

“I do not mean to goad.  When abortion was banned, the birth mother had the option to adopt out.”

“Adopt? The infant was taken from her at birth.  Price for the State funded quick time labor care.”

“But why should this matter if she would have aborted given the opportunity?”

Calm.  A sperm depositor, coming back for interest months later.

“It was part of her.  She lived it, was a whole with it.  Birth simply rechannels that connection, doesn’t destroy it.”

“So, in optimal abortion, this wholeness is severed before experienced?”

“Yes.”

“When abortion was banned, suppose adoption forbidden.”

Calm.

“We would hold the mother responsible for the care of the infant.”

“Henry, culturally, we do to this day.  If we really removed all children deprived of parental care, the financial burden would be much greater than now.”

“Yes.  Forced term.  No adoption.  No or little State intervention.  A kind of servitude on the woman.”

My shock is visible.  “Biology is not just.”

“Little is.  Anne, would you come to my chambers?  There is a small passage I would like to read to you.”

This recruitment will fail, but I will attend.

In chambers he picks up a volume on his desk–not of law, but ancient history.  Myth and tragedy in ancient Greece [Jean-Pierre Vernant and Pierre Vidal-Naquet, trn. by Janet Loyd, 1988].

“The topic is the use of law in Greek tragedy, specifically, on law’s false precision.  In Aeschylus’ Prometheus Bound some care is spent on describing Zeus’ rape of the maiden Io.  And a strange rape it is.  Io’s father is warned to release Io into the fields for Zeus’ desire, least destruction come to the community; the father woefully complies.  But, once there, Hera, jealous wife of Zeus, transforms Io into a heifer, then plagues her with an immortal horsefly which so crazes the heifer that she wanders the known world.  Here:

still the horsefly

goads me

the God’s switch

lashes me land to land

(Prometheus Bound, James Scully and C. John Herington, trns.)

Zeus eventually finds her and–caresses her with his hand, thereby impregnating her, the horsefly removed for failure.  Io’s so produced son is named Epaphos, meaning caress.  But the word of action used, rhusios, employs a stark inconsistency, at least for us today.  Vernant says

[R]husios, which also belongs to legal parlance and is here applied to the effect of Zeus’ touch upon Io, has two simultaneous and contradictory meanings:  one is the brutal violence of rape, the other the gentle sweetness of deliverance. [ibid, p. 39]”

“I’m not voting to hear Doe.”

“The rape begins with her father’s expulsion, continues with Hera’s horsefly, and is relieved by the lusting hand.”

“I’m not voting to hear Doe.”

“Vernant goes on

[This] word play to which a vocabulary as precise in principle as that of the law lends itself makes it possible to express as an enigma the problematic character of the bases of power exercised over others. [ibid]

Zeus would have raped, yet the social effect of this intention transforms him into her savior.  Impregnation is the only way out for Io.  Zeus’ hand is demon and savior, latter consequent of the former.  When the State acts, though, we risk being the horsefly.”

“I’m not … what?”

“On what you’ve said, a woman forced to term may come to love her infant child and refuse adoption.”

“Yes.”

“In such a case we cannot claim to have induced servitude upon the woman; love cancels that.  In fact, forced adoption as in the past would amount to theft.

“But what of the impregnated woman, not yet made whole with her fetus, who desires abortion?  If we are the agent of denial, are we not the horsefly?  Have we not driven her as cattle, induced servitude at that time?”

“You might tell her she will love the child, but she does not want it.”

“Horsefly to different end.  The principle confronting us, Anne, is whether or not the State may act as horsefly.

“I know:  you will vote to deny the hearing.  This is for after.”

[Associate Justice Anthony Pau] Cabrales and Suzuki must have agreed hearing.  Roe v Wade will be overturned.  And the future of women rests on a horsefly.

–

[Archival note:  Young incorrectly infers Mitland had agreed to hear Doe; he voted against hearing, but changed his substantive vote, overruling Roe v Wade, at decision, based on the developed involuntary servitude jurisprudence of abortion originating in Doe.  Suzuki provided the initial absolute majority overruling Roe.]

—

From the Journal of Anne Claire Young

13. On the Suzuki Court

During internal debate on whether to review Doe v Roe, latter heard as Doe v Dawkins of the Superior Court of Alaska; shortly before entry 12, above.

[related documents:  Cases from below:  In the Superior Court of Alaska: Doe v Roe; Anne Claire Young:  journal, entry 12]

“Justice?  The Chief Justice is outside.”

“Oh no.”

“Should I…”

“No, no.  He never stays more than ten minutes.  It’s just that I’m never quite certain what’s happened when he leaves.”

“Yes, mam.”

Justice.  No one should be called that.  And how can one be a “Chief” Justice?  What are we?

“Anne!”

“Hello Ben.”

“When justice is zero sum, what do we do?”

“Justice is always zero sum.”

“No.”  He moves his hand in a chopping motion.  “Choose one way–chop, something vanishes!  Choose the other way–chop, something vanishes!”

“Abortion.  You want to hear the replevin.”

“What do you do?  When Justice bleeds choose not to choose.”

“Ben, you want to leave it to the States–again?”

“No!  Right may not be abandoned.  We must say something as we refuse to choose.”

Once again, dumbfounded.  Why does he insist on making confusion sound profound?

“Ben, the arguments are clear and exhausted.  There is nothing new to say.”

“Ah!  Problem which is solution!”

Oh no.

“I don’t…”

“How to make choice no choice.  This we should face.  Well.  You are busy.  I have encumbered.”  He turns, then turns back.  “Hah!  Encumbered!  How can I relieve a burden which has gone?  Leaving won’t change that.  Something to think about.  Good day, Anne.”

“Bye, Ben.”

He wants to hear the replevin.

—

From the Journal of Anne Claire Young

14. On the Suzuki Court, otherwise undated

 

The stones sit, frozen, following one another, in vast plane of desert, not so far off from linear progression.  It’s night.  If I could look up, the sky would be filled with lights uncountable, here in remnant of existence before civilization.  Denumerable–countable, said [Associate Justice] Henry [Mitland] on other day.  But not countable by any human.  What we mean by ‘countable’ is that we can begin anywhere in the sequence to be then continued by another, and that this counting can be exhaustive of the prior we make with each new addition of ‘one.’  Our rear guard is secure!  Nothing has been missed!  We in team can keep moving forward, never having missed anything in our forward.  That is civilization–our rear guard is secure.  When not, we fall backwards in dominos until found as another’s ruins.  Non-denumerable insurgency is always in our interior.  The Reals–with every step forward there are an infinity of prior others between your step which chortle you cannot count us all!  Every step to include gives more left out.  You cannot hold us all, and there are even oddities in our rabble beyond your holding ken.

I looked at him that day, wondering if he and [Chief Justice Benjamin] Suzuki made bets on who could appear the stranger.  Who the stranger–not just strange, but unknown, perhaps unknowable.  Uncountable. Unaccountable.  That day he was not done:  Countable but not by any hand.  Old Cantor in his craze gave us a holding beyond holding then, in his non-denumerability proofs, gave numbers an escape.  For, you see, an Integer can cry it is a Real and so have, ahem, innumerable brethren–sisters?–which escape our account of the world.  I sat, then, thinking philosophy, if such this be, spins the air into a density of inaction.  He went on:  So Badiou’s ontology of Being as sets is not inhuman, which promises some common measure by extremes–but non-human.  His Events, employing the non-human for new purpose human, are his escape from science’s absolute zero where nothing can move, eternity there beyond recognition.  I want my common law texts, arcane but of peopled struggle I can blaze again, to be followed.  This ontology is a lost human retreating into Loss.  Finally the finale:  So, Anne, where is this uncountable knowledge never personally grasped but told, even in inner voice, as though of outsiders elsewhere?  In humanity, in the network of knowledge, in the discipline of reason owned by none yet ever there to, well, discipline!  So, once again, humanity is not human!  Q.E.D.  A pause.  Get the joke?  That’s humanity for you–always practical joking its necessary parts!  For discipline!  Reason traps again.

I look askance.  Come now, Anne, do you really think your common law any different?  Your ‘I’ is born (and borne) of words, the Lockean grunts of the pre-pre-history long gone.

It took me a moment to parse “born” and “borne.”  But that, I suppose, was another point of the same point made.  We are not the written but necessary for the writing.  To go back exactly to the ink is not vocal speech.  The page severs from us.  Authors know that what is purchased is no longer them.  There’s no Dante, no Locke, no Leibniz to talk to in their texts.  Our words can be used against us, or for purposes quite ulterior.  And yes, Henry, so in the law.  When we speak of the law, we speak of no person.  Perhaps that should scare us.  Perhaps that’s the coin of the demagogue, the repellence of law applied.  Yet all we can do is change one law for another.  Humanity, Henry’s, is not human.

Now I sit in darkened room which is not night although there is night outside this cave.  To understand night we retreat into an artificial night, the non-human humanity which writes through our bodies, and can only read itself through our bodies.  That must be lonely.  But no–the non-human cannot be lonely or anything else.  It just sits to be used so it can use us, self-awareness impossible at absolute zero.

In front of me project stones in frozen follow.  They sit unbeknownst in Death Valley.  If you visit repeatedly you will find they move forward, all in the same direction, centimeters made more upon their own repetition.  Scientists like to break the world into digestible bits for understanding, this their false escape from the non-humanity of science.  In experiment or odd observational method scientists break from the prison of humanity.  More oddity–for the scientist’s escape is shackled to method not his–he,he, his–own, incapable of full flower on his own, which is to say we do not own, but are once again owned, our freedom, mostly, prison exercise.

Cameras were installed in front of the stones unseen path.  Time lapse presented to us.  All night nothing happens.  Debry of creation’s past sits beyond stoicism, the non–attitude of ontology’s existence.  (Can I say that?  I just did, in my journal to be closed.)  Day after day so, existence refusing its call.  And that is why science works.  It absorbs into its nothing all the nothings we make in its service–until there comes a happening.

Blissfully, most of the nothing are edited to their home.  After a few time lapse days of nothing, sun dawns before camera so behind stones.  One moves, just a bit, but noticeably; we can hear, mics planted.  Then still again.  A few more days of this, then permanence returns.

Henry turns the lights up, no god of Sun needed for day.

“At night moisture condenses under the stone, freezing.  The rocks are slanted very slightly downward in there path.  With dawn wind the ice reduces friction enough for the stones to move slightly forward through combined wind and gravity–more wind if you’re at a bump, but the ice can so accumulate there to lessen the struggle.  What our hands would do crassly much less does with finesse.  The stones trek from their origin, miles and miles by now.”

Talking to Henry is like talking to a wished for cultured Suzuki, his Zen affectation an erasure of all the Japanese refinery he never had.  With both, best to wait. 

“Without science, we would trek about, eventually notice movement as new distance.  Vigils might be set, to spy the other with hands like ours who spoof divine action.  Such might one day reveal what we have just seen.  I can see one blessed by that moment not in revelation of gods, instead walking in mind into that stone to escape where he is.  Thereafter he sees himself frozen on harsh plane, awaiting little movements which marvel all, including him.  He makes no theology of stone, but becomes, such as he can, presence of waiting stone.  His life awaits movement not his until he can move no longer, perhaps another, watching his occasional miracle of movement, walking in mind into him, just as he himself walked into stone.”

I should say something; this is the after dinner talk portion of my invitation.  “Are you saying this is how culture works–stasis punctuated by movement that cannot be understood?”

“So much burden on a stone!  This would be as much escape from culture, becoming stone, as culture in tiny marvel of making.  What it is not is a worship of the Death Valley plain, although the Valley can explain our man:  alive in the desolate where, the only where there is, that definitionally existence, pounding as heat, Being being an assault.  He waits it out, existence.”

I suppose I’m waiting this out.  All our talk a waiting, like Godot, for Godot.  “Waiting out implies an after.  But existence has no after.”

“Ah, Anne, part of culture is the wait against itself.”  He pauses.  “I made a Suzuki!  A wait against itself.  A weight against itself.  To refuse budge.  To contemplate against existence entails being in it.  Contemplation is recusal, a non-participation based on an invitation–or demand–otherwise.  Philosophy does not embrace the world; it stands back to say what the participating world is.”

“Why should that matter at all?”

“To lie under stone so perchance it moves.”

“That water evaporates.”

“Story is a movement past, accumulating underneath us. Stone sits long contemplating its place. And there is the distant wind felt only in our movement. Sad little philosophy, beneath such weight, needing afar to make a difference, an afar not it, an afar which comes beyond its talk.”

What can any of this matter? Tomorrow we sit in Chambers, then hearing, in the hard reality of law. In our arguments, explicit or dodged save as impact, we decide the trajectory of faceless others. There’s the Suzuki lie. Lie here. Lie of importance, lie of placement to be. Let’s see what Henry does with the present lie.

” To lie under stone you said. That’s a placement. But is it a falsity as well?”

He looks to the wall behind me. The study is full of Southwestern Native art. On that wall hang four Navajo rugs, one the storm pattern, a bug or spider (counting the side lightening bars) where four feet are storm threatening to become the body’s center, its travel thunder. Outside comes in threat, but rain is an outsider.

“Culture is not global truth. We are all local in some ways, even our tribunal. Badiou has truth foreign to place, so general as indifferent to our breath.” Another pause. “That comports with evolutionary biology. We are selection unawares, placed in a calculus of no hands.”

“The universe has no hands.”

“Yet the dew freezes in just the right place.”

“A mustard seed triumphant?”

He laughs at reference to [Associate Justice] Rachel [Colleen Whitehead]. Throw seeds liberally–liberally; some will root. A nihilism of triumphant presence. I wonder if Rachel has ever entered this study full of idols lost. But he would enter hers.

“Nietzsche,” he says. Ah, the contra-culture titan, an anti-Prometheus who would snuff out all fire in expectation that the dark will burst aflame. He continues, “In Zarathustra the animals speak: we are on a recursion path, walk long and return to this saying again. Nietzsche’s solution to freedom was to loop causation back on itself. The will is caused, but it loops back into itself. The will wills itself. But it has to happen. Striking out anew, sundering what has been, is novel repetition. Our exertions toward selfhood are preordained (you’re welcome Calvinists) so we can remain preordained. Our exertion creates itself, this freedom of the unfree. Our will is to lie us into will–in both senses!

“But see the price of Nietzsche’s solution: if our struggled selfhood returns us distant to this very now, everything we struggled against will return–indeed, it is as caused as much by our triumph in this now as is our repetition of that triumph to come. Everything we have disdained will return–exactly return–in part because of our flight away from it. Freedom brings self imprisonment for escape for freedom for self imprisonment. Our very run is what we cannot run from.

“Level of generality hides causation, hides freedom, reveals them both. Freedom is necessary ignorance. To know all is to be God in the eternity of absolute zero.”

“That circle run. And science, Henry?”

“Is inhuman, as I said, a movement toward God.”

“And law?”

“The inhuman wanting to be human.”

Is that why I sit here, Henry, for that sentence? He walks over to Masauwu, the Hopi death god. “Hopi, remnant of the fallen Anasazi, Masauwu different from their Kachinas, thought by–outsiders–to be their oldest god, direct from the Anasazi, the only god not in a procession of gods, the only god coming when it likes, beyond ritual, in the night to snatch us back. Masauwu is not just death, but emergence too, showing the people into this world, giving them corn. He is escape from ritual because there is ritual.” His finger comes up in Germanic point. “Corn brought from Mesoamerica somehow, up–up–the Hopi plateaus, up from a below lost to memory yet–Nietzsche!–recovered in the flight from Anasazi collapse, flight south, then later return, proto-Hopi emerging again.”

My drink is empty, may I go lie in bed? “Surely Henry that is coincidence.”

“Coincidence has scaffolded culture. We science derived are going it alone.”

So many words said. Sense flees ahead, asking for more words. The stones–are we done with the stones? I want to move.

“Masauwu brings us here, takes us back. What’s back there? Dig and find all absorbing obsidian, dark even when unearthed. Well, dig and find–more. But that’s another story.”

Please be it for later. He sees my fatigue. “I can sit in this room and view all this,” his hand sweeping about his private museum, “but belong to none of it. I sit in nowhere. That is the humanization of science–at least social science. You know Ben’s pocket notebooks?”

A slumber nod from me.

“You encounter him. He listens with expression of puzzled pain, then goes ‘Ah!,’ pulling out one of how many pocketbooks made, thumbing, then reading a quote, poetry, aphorism, sentence, nods somewhere between satisfied and reverence, then quite possibly walks away with no further word.”

Please let me walk away, Henry Mitland. He walks to his desk, pulls out one of several large not pocket notebooks standing thereon. Opening and paging, he puts finger on unseen words, reading

“‘I cracked a thought between my nails

that they will light a candle

“and

” …crying like gulls

that search of the sea

nine years I hurried from mankind.'”

He looks up. “Austin Clarke. Irish. He’s not Native! At least not here.”

I can go now. But he can’t.