Legal fictions

Obama, Sotomayor and theories of democracy

During the 2005 confirmation hearings for John G Roberts, the chief justice of the US Supreme Court, Barack Obama, then a freshman senator, made the following observation about the role played in the court's decision-making by judges' own convictions on questions of political morality:

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 per cent of the cases that come before a court so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 per cent of the cases -- what matters on the Supreme Court is those 5 per cent of cases that are truly difficult. In those 5 per cent of hard cases, the constitutional text will not be directly on point . . .

The legal philosopher Ronald Dworkin cites these remarks in a fascinating piece in the New York Review of Books about the Senate hearings on President Obama's own nomination to the Supreme Court, Sonia Sotomayor. According to Dworkin, they undo the "democratically harmful fiction" that the judgments of Supreme Court justices are made always and wholly in fidelity to the law -- a fiction in which Sotomayor colluded, disastrously so, in Dworkin's view:

Her hearings could . . . have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgements of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

The important question, of course, is what such "judgements of political morality" amount to exactly. By that phrase, Dworkin doesn't mean partisan prejudice, but rather some "general theory of political morality" that would include a view about the "best conception of democracy, including the best understanding of the individual rights that must be secured by law". Dworkin set out just such a theory in his book Is Democracy Possible Here?, which I reviewed back in 2006.

Jonathan Derbyshire is Managing Editor of Prospect. He was formerly Culture Editor of the New Statesman.

Photo: Hunter Skipworth / Moment
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Cones and cocaine: the ice cream van's links with organised crime

A cold war is brewing to the tinkling of "Greensleeves".

Anyone who has spent a summer in this country will be familiar with the Pavlovian thrill the first tinny notes of “Greensleeves” stir within the stolid British breast.

The arrival of the ice cream van – usually at least two decades older than any other vehicle on the road, often painted with crude approximations of long-forgotten cartoon characters and always, without fail, exhorting fellow motorists to “Mind that child!” – still feels like a simple pleasure of the most innocent kind.

The mobile ice cream trade, though, has historical links with organised crime.

Not only have the best routes been the subject of many, often violent turf wars, but more than once lollies have served as cover for goods of a more illicit nature, most notoriously during the Glasgow “Ice Cream Wars” of the early 1980s, in which vans were used as a front for fencing stolen goods and dealing drugs, culminating in an arson attack that left six people dead.

Although the task force set up to tackle the problem was jokingly nicknamed the “Serious Chimes Squad” by the press, the reality was somewhat less amusing. According to Thomas “T C” Campbell, who served almost 20 years for the 1984 murders before having his conviction overturned in 2004, “A lot of my friends were killed . . . I’ve been caught with axes, I’ve been caught with swords, open razors, every conceivable weapon . . . meat cleavers . . . and it was all for nothing, no gain, nothing to it, just absolute madness.”

Tales of vans being robbed at gunpoint and smashed up with rocks abounded in the local media of the time and continue to pop up – a search for “ice cream van” on Google News throws up the story of a Limerick man convicted last month of supplying “wholesale quantities” of cocaine along with ice cream. There are also reports of the Mob shifting more than 40,000 oxycodone pills through a Lickety Split ice cream van on Staten Island between 2009 and 2010.

Even for those pushing nothing more sinister than a Strawberry Split, the ice cream business isn’t always light-hearted. BBC Radio 4 devoted an entire programme last year to the battle for supremacy between a local man who had been selling ice creams in Newbiggin-by-the-Sea since 1969 and an immigrant couple – variously described in the tabloids as Polish and Iraqi but who turned out to be Greek – who outbid him when the council put the contract out to tender. The word “outsiders” cropped up more than once.

This being Britain, the hostilities in Northumberland centred around some rather passive-aggressive parking – unlike in Salem, Oregon, where the rivalry from 2009 between an established local business and a new arrival from Mexico ended in a highish-speed chase (for an ice cream van) and a showdown in a car park next to a children’s playground. (“There’s no room for hate in ice cream,” one of the protagonists claimed after the event.) A Hollywood production company has since picked up the rights to the story – which, aptly, will be co-produced by the man behind American Sniper.

Thanks to competition from supermarkets (which effortlessly undercut Mister Softee and friends), stricter emission laws in big cities that have hit the UK’s ageing fleet particularly hard, and tighter regulations aimed at combating childhood obesity, the trade isn’t what it used to be. With margins under pressure and a customer base in decline, could this summer mark the start of a new cold war?

Felicity Cloake is the New Statesman’s food columnist. Her latest book is The A-Z of Eating: a Flavour Map for Adventurous Cooks.

This article first appeared in the 22 June 2017 issue of the New Statesman, The zombie PM

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