0spinboson's Reviews > With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful

With Liberty and Justice for Some by Glenn Greenwald
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Nov 11, 2011

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Read from December 04 to 06, 2011

I am still fairly young, and because of that, and because I have had internet access for ages, I (as a Dutch national who has always been somewhat interested by the US) would say that I have grown up with the idea that the US has a class justice system. The first trial I really heard much about was OJ's, and most of the movies I saw about the US legal system were movies that had (usually) black people being treated extremely badly by the police as well as the courts, and who invariably lost their court cases because they couldn't afford a lawyer, while the public defender did nothing for them. (Incidentally, this is why I dislike US detective series so much: they always make it seem as though police abuse is a fringe issue. It's odd how movies tend to emphasize the negative side of the justice system, while TV series largely ignore it.) And while I am very much aware of the fact that those movies were strictly speaking "fiction," I never really got the impression that they were overstating the case.
Because of this, I have to confess that I already started out as being rather skeptical of Greenwald's fundamental claims -- that the US is under the 'rule of law', and that being under a 'the rule of law' rather than a 'rule of men' is necessary for societal stability and legitimacy. Having said that, I was curious to see what kind of arguments Greenwald would present in order to make his case. Having finished, though, I have to say that although I don't really disagree with any of the points Greenwald makes with regards to elite immunity, I am far from convinced that the changes he describes are as game-changing as Greenwald takes them to be.

The focus of the book is the rise of elite immunity, and in particular on the changes in the way elites view themselves -- namely, as deserving of their position above the law -- and on the changes in the way elite immunity is 'sold' to the courts and to the public -- namely, by defenses that explicitly invoke their elite status when defending why they should not be punished for their actions. Now, I certainly agree with him that these are important changes, and important indicators of the US turning into a 'banana republic'. And I think that it is a good thing that Greenwald is trying to make more people aware of this, and of the perversity of this way of reasoning. That said, it seems to me that Greenwald rather underplays the fact that this is basically the only thing that has changed for the elites, since they have always been able to get away with far more than ordinary Americans (primarily because they have access to better lawyers, but also because judges treat them more deferentially, and because DAs are often sympathetic to them). Similarly, he largely ignores the question how broadly his thesis applies: the examples he discusses are about members of the political (and financial) elites getting away with things, not about more 'ordinary' elites doing so.

Another related point that bothered me when reading the book, was that Greenwald says very little about the question how the non-elites view the system, and how it works. Because while he does discuss the question of how the members of the 'second tier' are treated, this discussion is relegated to chapter five. And there, he does little more than to invoke a few polls, and to talk about the macro consequences of the War on Drugs and three-strikes/minimum sentencing. (Though to be fair, he does reference a number of decent books that spend more time on this issue.) Unlike the advocates of the elites, he never lets them speak for themselves, and he never really asks the question what the changes he describes have meant for the way they experience living in the US. In other words, the mistreatment of the "second tier" is largely taken for granted, and their suffering is largely treated instrumentally, in order to make a point, rather than as being important in itself. As such, I did not really get the impression that Greenwald thought their treatment to be as relevant to worry about as the other side of the question, and this struck me as rather a shame. (I have no idea whether or not this would yield insights that readily lend themselves for analysis -- or if that should be a requirement. One problem, I suspect, is that it probably wouldn't have sold, as people are far more likely to accept the idea that the poor are deserving of mistreatment than they are of the idea that the elites are allowed to abuse power.)
Having said that, I do find the book to be something of a disappointment, even while I am unable to say why, since I don't really know what I was expecting to find. What I can say, is that I found it interesting (if depressing) to notice how little in this book managed to rile me up or surprise me. As I read it, I kept alternating between irritation (because I knew nothing would be done about these trends, let alone to punish the people mentioned) and frustration (ditto). And while it may not be quite fair to blame Greenwald for that, it does seem to me that, if anything is to be done about these issues, what is needed is not a simple shift in rhetoric and law away from allowing such outrageous defenses of elite privilege, but a far broader overhaul of the way the judiciary functions. As such, it seems to me that the perspective Greenwald offers on the history of the past 40 years is rather limited, because he takes the judicial system to be both far more important in creating inequality than I would say it is, and far more independent from the rest of society than it really is.
That is, there seems to be a weird imbalance at work in the story he presents. Because while he spends oodles of time on the issue of elite corruption in the executive (and legislative) branches of government, he says next to nothing about the question why the judiciary accepts these arguments. Now, certainly, in the case of presidential decrees or legislative changes, there is fairly little that it can do, but I am hesitant to believe that they are the largely-passive third party that he implicitly presents them to be. In fact, I would argue that ideological judges are a huge part of this, if perhaps not in the specific examples Greenwald has chosen to discuss. He seems to be convinced of the importance of the role the judiciary has played in creating more 'social justice.' Yet with the exception of the Warren court, it seems to me that pretty much all Supreme Courts have been conservative at best, and reactionary at worst. And while I don't know much about what judges are like at the levels below SCOTUS, I imagine it isn't all that different. So why does he ignore this, other than because it would force him to revise his suggestion that the "rule of law" is as procedurally fair as he assumes/presents it to be?
In sum, I would venture that he draws a far stronger separation between the legal, political and social domains than is warranted, and than is helpful when trying to understand the problems facing the US. So while I would recommend this book to people for the discussion on the problem of elite immunity, and what it says about the US legal system, I feel a bit let down otherwise. Because while the emphasis just on the rule of law, legislation and media corruption is fine when he is writing on his blog, its limits become rather more obvious when presented in longer form.
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