The Declining Taste of the Global Super-Rich

Today’s “patrons of the arts” are less interested in opera and ballet, and more interested in novelty furniture and enormous sculptures of their own faces…

Last May, with little to no fanfare, the Cedar Lake Contemporary Ballet in New York City closed down after 12 years, leaving about 16 dancers and about 10 administrators out of a job. The company’s dissolution, quietly announced on, was a particularly tragic loss for the dance world, which requires an innovative atmosphere to sustain itself.

Funding for even venerable ballets grows  scarcer and scarcer, and more experimental operations like Cedar Lake are even more vulnerable. It’s a sort of “last hired, first fired” set of priorities, and as a result, the institution of ballet itself is threatened with stagnation. Swan Lake and The Nutcracker are exemplary classics to be sure, but without daring and contemporary new ballets, the artform itself becomes relegated to antiquity. In America specifically, ballet increasingly smacks of a bygone era, making it less attractive to potential funders.

So the bankrolling of ballets has been left to a few super-wealthy benefactors. For Cedar Lake, it was Walmart heiress Nancy Walton Laurie, who invested $11 million of her estimated $4.5 billion fortune to found the project. Laurie gave Cedar Lake a custom-built theater and rehearsal space in Chelsea, and stocked it with a full roster of talent. Boasting job security nearly unheard-of in the dance world, Laurie paid the staff and dancers full-time salaries with vacation, health insurance and even dental.

Unfortunately, the company was notoriously mismanaged. Turnover was high; the bestowing of dental coverage didn’t compensate for otherwise-dire working conditions. The dancers were actually fined for lateness and performance mistakes, a shockingly repressive practice unheard of even in the legendarily regimented dance world.

Both former dancers and employees would later paint Cedar Lake as the vanity project of an imprudent billionaire, who was, unfortunately, their only real donor. Her whims lent the project both its generosity and its tyranny, and when the whims shifted, the ballet was no more.

In recent conversation, a professional opera singer lamented to me the the state of his profession under recent funding woes. The trajectory for an opera singer, he told me, used to be a fairly established route. A singer would graduate from a conservatory, then spend a couple of years performing for some backwater German town to hone their skills—a sort of apprenticeship that both developed the artist’s voice and brought opera—a much more appreciated artform in Europe—to a smaller community.

Such is no longer the case. The austerity measures taken across Europe have dealt arts funding a serious blow, particularly in the less wealthy countries. In 2012, The New York Times reported that not only were the smaller opera houses getting the ax, but even once sacrosanct institutions were under fire; the legendary La Scala opera house in Milan was landed with a $9 million dollar deficit that year. Smaller countries like the Netherlands lost 25% of their arts funding, and Portugal dispensed with its Ministry of Culture entirely.

Some companies attempted to adapt to shoe-string budgets by going “punk”—doing away with famously grand productions in favor of sparser shows, and even a few “experimental” one-man performances.

“It’s austerity for opera,” proclaimed the exasperated tenor. When I admitted to him that the only opera I can afford these days are sparse, DIY productions at a loft in Bushwick, he was encouraging, saying “that’s great—just go.” But there’s no getting around now the fact that there’s something missing from a minimalist Carmen; no matter how “experimental” it might be, it’s not a vision fully realized.

“The thing about opera is,” he said, “you get a lot of people working together to create this massive spectacle, and then it’s over. And all you have to take home with you is the experience.” The creation of such coordinated, ephemeral spectacles requires both serious committment and serious material resources.

The gilded age tradition of wealthy benefactors is clearly over. The very wealthy—now often nouveau riche and unbound to the trappings of aristocratic noblesse oblige—no longer consider themselves stewards of the sublime. As classical music scholar John Halle opined in “The Last Symphony” in Jacobin magazine, the upper and ascending classes no longer subject their children to the rigorous training necessary for classical musical scholarship. As Halle says, “today’s elite lacks the patience and culture for classical music.” Consequently, the patronage system has become rather passé, and even the odd anachronistic billionaire-funded ballet company might find itself dismissed on a whim. Put bluntly, the upper class just aren’t as classy as they used to be.

So too has public funding for high art taken a beating. While Americans might yearn for the sort of well-funded public arts programs they imagine Europeans prioritize, the reality is much bleaker. Despite Europe’s zealous emphasis on promoting a rich culture for a united continent, the European Union is constantly hacking away at centuries-old institutions in the name of belt-tightening.

But if the would-be private donors are now cretins, and public funding has been slashed to bits, who finances art today?

first encountered the name Dakis Joannou while working as an arts and culture writer for a fun counterculture blog. Scouring the Internet for something subversive to cover for our “arty dirtbag” readership, I happened across a newly-published coffee table book, 1968: Radical Italian Design, which collected photos of a number of garish pieces of impractical-looking furniture. Since strange furniture always gets the clicks, the book made for a perfect post. It was doubly improved by the fact that the furniture in question was so unequivocally terrible.

Radical Italian Design was a bold avant-garde movement out of the late 1960’s that eschewed both form and function on principle, meaning the furniture it inspired is both intentionally garish and practically dysfunctional. The design philosophy is one of overt aesthetic and utilitarian offense—it is ugly, it is useless, and that is all on purpose, with none of the cheek that could even give it a campy appeal. I cannot stress this enough; it’s just terrible, ugly fucking furniture.


What interested me most, however, was that I had never heard of Radical Italian Design before. I’m no design expert, but I can at least distinguish a Verner Panton from an Eames, and I like to think I am passably aware of most of the significant stuff. I was also very familiar with the Memphis Group, another Italian design movement of slightly less offensive garish white elephants, once aptly described by The San Francisco Chronicle as “a shotgun wedding between Bauhaus and Fisher-Price.” But Memphis Group looks highly practical and understated in comparison to the Radical movement. How, then, I wondered, did this book about an unpleasant—but relatively minor—design movement come to be?

It turns out that every single piece of furniture photographed for 1968 belonged to one man: Dakis Joannou, a Greek-Cypriot billionaire, industrialist, hotel magnate, the largest importer of Coca-Cola in Europe and Africa, and one of the most famous art collectors in the world. 1968: Radical Italian Design is actually a project of the Athens-based Deste Foundation, Joannou’s arts non-profit, and an organization that conveniently allows him to monetize and promote his own personal art collection.

Deste has produced a rather extensive series of books advertising and legitimizing Joannou’s private collections. In 2012, for example, just as Greece began its descent into a dire humanitarian crisis, Joannou hosted a show of selections from his drawing collection at the Deste Foundation’s Project Space—a few months later, the show was made into a book. Joannou titled the show and subsequent anthology “Animal Spirits,” after the Keynesian economic term describing the “spontaneous urge to action, rather than inaction,” meaning the decisions we make that are borne of some primal human instinct, rather than measured or calculated reasoning.

If it seems like an arcane non-sequitur to name an art show for the uber-wealthy after an economic concept, consider it damage control. “Animal Spirits” actually ran as a substitute for an even ritzier art event of Joannou’s, in which 300 or so of his friends would travel to the vacation destination island of Hydra—the so-called “gem of the Saronic Gulf”—to party in opulence, and bask in the beauty, sun and art. The reason for the cancellation? The weekend coincided with the Greek elections. Even Joannou, generally insensitive to all matters of decency, admitted that going forward with the show would have been “inappropriate.”

Joannou is a big fan of the “Animal Spirits” idea, and the romance of such a mystical concept of rugged individualism guides his hand when it comes building his art collection. As Greece struggled to keep its people fed and housed, Joannou’s billions—which remained relatively untouched due to tax loopholes for the shipping industry—never quite trickled down to destitute Greeks, not to mention Greek cultural institutions.

In a glowing profile in Departures, a self-described “luxury” and “lifestyle” magazine, Joannou was quick to explain why “support isn’t helping anybody. In the beginning, a lot of people thought that’s what I was doing, and they would ask for funding for this or that. I said, ‘I’m sorry, I’m not into that.’ It’s about creating a platform.”

And who has Joannou given a platform to? As a collector of work from around the globe (though rarely, as many of his critics point out, Greek artists) he’s actually most famous for giving the world Jeff Koons, from whom he purchased the very first piece of his collection in 1985.

The now-famous sculpture was “One Ball Total Equilibrium Tank,” which Joannou purchased for for $2,700. The sculpture, best described as a basketball suspended in a glass fishtank, was a big break in the early days of Koons’s art career, not too long after he had left a career as a Wall Street commodities broker. Since then, of course, Koons has exploded into an infamous art superstar of sorts, even though his critical reception has been decidedly mixed—Nation art critic Arthur Danto described his work as “aesthetic terrorism.” Koons’s works have increased in both scale and price, with his massive metallic sculpture “Balloon Dog” raking in a cool $58.4 million. And who could blame Christie’s auction house for bidding so high? It’s big! It’s shiny! It looks like a balloon that has been twisted into the shape of a dog!

Koons was actually so possessive of this innovative idea that when one gallery began selling little balloon dog bookends in their gift shop, he sent them a cease and desist letter. Koons makes tchotchkes, but they’re art tchotchkes, and whether it’s a porcelain sculpture of Michael Jackson and his chimp Bubbles, or a series of inflatable toy Incredible Hulks adorned with bric-à-brac, everything he makes is immediately recognizable, insistently conspicuous, and totally unchallenging.

Now of course Koons and Joannou are dear friends, with Joannou facing scrutiny for charging Koons with curating a show of works pulled from Joannou’s collection at the New Museum of Contemporary Art, where Joannou is also a museum trustee. A public museum showing the private collection of one of the host muesuem’s own trustees would be enough to raise eyebrows, but Joannou handed the reigns over to Koons, his own prized pony, so to speak. The conflict of interest was glaring and extremely controversial, but the show went on. Wealth confers license to operate as one pleases, no matter how noisily one’s peers may register their ethical objections.

If that incident wasn’t incestuous enough, Koons also famously designed Joannou’s mega-yacht, The Guilty, which is quite possibly the ugliest boat in the world. The 115-foot long luxury liner is wrapped in a World War I British Naval camouflage called “Dazzle,” which was designed to evade enemy fire with a mish-mash of angular chaos. If you were to take a helicopter overhead, you’d see a massive mural of Iggy Pop on top, an artist whom Koons considers appropriately “Dionysian” for the setting. Ironically, Joannou has had to paper over the notorious “camouflage” of The Guilty, in order to disguise it from paparazzi. (Or perhaps to keep out design-enthusiast marauders?)

In a 2013 interview with Forbes, Joannou described the design concept thusly: “We did what we wanted; style was irrelevant. We designed a boat in an antistyle method. We have no rules, no programs, no plans.” The description echoes the ideological influence of Joannou’s own Italian Radical Design collection, which is, coincidentally, housed in the “living room” of the mega-yacht. The hideous is not to be spurned but embraced; style was irrelevant.

At first glance, Joannou’s collecting habits may seem like the eccentric vagaries of a an insanely wealthy magnate searching for legacy and legitimacy. I won’t deny the eccentricity charge, or the role of ego. One of Joannou’s beneficiaries, painter George Condo, has immortalized Joannou in surrealist portraiture. Another Deste favorite, sculptor Pawel Althamer, sculpted his dear friend Dakis as a Native American chief in full war bonnet, taking a cast of Joannou’s own face for accuracy.

But Chief Dakis’s project isn’t just bohemian wealth run amok, it’s explicitly ideological, the Animal Spirits of a man who fancies himself a Howard Roarke visionary, despite his total lack of credentials as a doyen.

And this is the state of fine arts under contemporary capitalism. Classics and antiquity have lost cultural cache in the age of disruption, and there is no longer an aristocratic imperative to support noble projects of lofty ambition. Today we’ve neither dutiful Kings, Vaticans, or robber barons to seduce the hoi polloi into complicity with visions of the transplendent. Nor do the experiments in democracy we deem “states” seem to be doing much better, having withdrawn much of the already measly funding available for highbrow cultural endeavors.

Even dictators don’t care to seem interested in bribing the proletariat with great works any more. Before being deposed, Moammar Gadhafi shelled out big bucks for private concerts from such virtuosos as Beyoncé and Mariah Carey. Despite intense criticism, Nicki Minaj took home $2 million last year to play for Angolan dictator José Eduardo dos Santos. And forget about the nouveaux riches investing in art for the people. Crooked pharmaceutical executive Martin Shkreli is despised for jacking up drug prices, but he is only slightly less despised for spending $2 million on the only existing pressing of a “secret” Wu-Tang Clan album and then threatening to destroy it.

So what we have now, if we’re lucky, is the odd production of Swan Lake (because it’s still good), a valiant but tragically austere Carmen (because it’s the best we can do), and Jeff Koons, because his work flatters Dakis Joannou’s vision of a Dionysian rebel.

For the new era of bourgeoisie, the symphony, the ballet, the opera and the museum hold less appeal than a pop star playing your private party, and they certainly can’t compete with holding court in an art empire of your own design. The ruling classes ain’t what they used to be, and vulgar narcissists like Joannou aren’t content with anything short of taking the products of their patronage home with them—and he does, all aboard The Guilty, bobbing atop his fugly floating Versailles.

“Multiculturalism Rots Brains”: An Interview With Maryam Namazie

The Iranian dissident communist gets scathing about Islamism and the Left…

Maryam Namazie is a secularist and women’s rights activist originally from Iran, from which she fled in 1980 after the establishment of the Islamic Republic. She has worked around the globe on behalf of refugees, and has won numerous awards for her humanitarian advocacy. In 1991, she founded the Committee for Humanitarian Assistance to Iranian Refugees and has served as the executive director of the International Federation of Iranian Refugees. She is a spokesperson for the Council of Ex-Muslims of Britain and is on the Central Committee of the Worker-Communist Party of Iran.

Namazie was recently the subject of controversy in Britain after a speech she gave at Goldsmiths College was disrupted by members of the college’s Islamic Society, who heckled her, disabled her projector, and attempted to prevent her from speaking. The student union of Warwick University also blocked the university’s Atheist, Secularist, and Humanist Society from inviting Namazie to speak, with student union officials saying that a “risk assessment” of Namazie had concluded she was “highly inflammatory” and therefore would violate the school’s policy on external speakers.

Namazie spoke to Current Affairs from London.

Current Affairs: Most of those who are vocally critical of Islam and Islamism today seem to come from the far right. You come from the left. What is the substance of your criticism, and how does it differ from that which we hear from the ​nationalist, anti-immigration camp?

Maryam Namazie: Well, I don’t agree that most of the criticism comes from the far right. I think that’s a narrative we’re often fed, whereas if you look at a large amount of the resistance that takes place against Islamism, whether it’s from the Middle East, North Africa, South Asia, or the diaspora of immigrants and refugees who have fled those regions, you do find that a lot of those people are on the left. So, I work with lots of women’s rights’ campaigners, for example, secularists who are very much on the left… I think it’s not the far right that’s the only vocal opposition. It’s been portrayed as such, in the same way as it’s been portrayed that Islamists represent Muslims.

There’s a big difference between a left or human perspective in this fight against Islamism and a far right perspective. Fundamentally, I think the difference is that the far-right politics is also a politics of hate very similar to Islamist politics. Islamism is also a far right movement. If you look at the far right, they are primarily defending what they consider a “Christian” West, vis-a-vis a “foreign” religion: Islam, and what they consider foreigners. And it’s very much based on placing collective blame on Muslims and migrants, seeing them as one and the same with Islamists. My perspective, and the perspective of many of the people who fight with me, is human-centered. Islamism is a fascist movement, we have to be able to oppose it. Islam is a religion, we have to be able to criticize it, whilst defending universal values, secularism, and equality between men and women. Not placing collective blame, and seeing dissent amongst those deemed ‘other’ as well. So I think there’s a huge difference between the positions.

CA: But perhaps while in Muslim majority countries, these criticisms are going to be secularist and humanist, in the West the dynamic is slightly flipped. You’ve been very critical of Western liberals for what you see as their siding with right-wing Islamist movements in their attempt to defend multiculturalism and anti-racist values. But isn’t that just a product of the fact that in America the foremost critic of Islam right now is Donald Trump, so anyone who wants to be on the left is going to have to side with Islam in order to be against racism?

MN: But again, I don’t think that’s true. I think that’s the image that’s portrayed by government and the media. It’s a very simplistic narrative, where Islamists represent Muslims, and obviously that’s not true… Both sides use the same narrative, that of multiculturalism and cultural relativism, even though they reach separate conclusions. In practice, both sides see the Muslim community as a homogeneous community, and therefore the regressive Left feels that it needs to side with the Islamists if it’s going to defend the “Muslim community,” whereas the far right blames Muslims for Islamism and therefore attacks all Muslims. They both have a simplistic view of communities and societies. In fact, there are so many people on the front lines, fighting against the religious right. Unfortunately, they seem to be invisible in the mainstream media. So if it weren’t for social media, no one would know of me, and still really no one knows of me, even though I’ve been fighting Islamism for more than twenty-five years. The people I gathered together at a 2014 secularism conference are battling various religious right movements, whether it’s the Buddhist right in Sri Lanka and Myanmar, whether it’s the Hindu Right, whether it’s the Jewish Right in Israel and the settlements, or the Christian right and so forth. Very often we don’t see the many people who are standing up to the religious right in various contexts.

CA: How do you carve out a stance that criticizes both the homogenizing effects of left-wing multiculturalism as well as the racism of the right? Because obviously sometimes you’ll have to defend the rights of people you disagree with, even Islamists, when they’re being subjected to bigotry.

MN: It goes back to a point that has been made by [British secularist writer] Kenan Malik, that with the rise of identity politics, solidarity is now either with identities or against identities rather than with ideals, social and political movements, and dissenters. But it’s quite clear cut: if I side with humanity, then it’s very easy to be anti-Islamism, anti-imperialism, anti-racism, and pro-universal rights. In fact, it makes perfect sense. The left can’t be against one kind of fascism, but then defend another kind of fascism, the Islamists. Similarly, the far right only feigns to care about women’s rights when Islam is involved. They’re quite happy if abortion clinics are being bombed or Planned Parenthood’s funding is being cut. In that kind of politics, there’s no consistency. But when you have a politics that’s centered on the human being, not culture, not religion, not limited self-interest, that’s left politics and what the left has traditionally stood for. Unfortunately, with decades of multiculturalism and cultural relativism, the brains of many people on the left have completely rotted; cultural relativism is in the DNA of much of the left now.

CA:  Surely there’s a defensible version of multiculturalism, though? Because presumably what you mean by that term is legitimizing anything that occurs in another culture simply because it’s in another culture, and allowing that to trump universal human rights. But at the same time, there is an important principle in recognizing differences among peoples and allowing those differences to flourish. So what should people who want to be multicultural aspire to be?

MN: I think multiculturalism as a lived experience is a very positive thing. But that’s not what “multiculturalism” is today; it’s a social policy. So, in Britain today, multiculturalism as a social policy segregates and divides people into ethnic and religious communities. And what we’re seeing is a push toward separate faith schools, separate courts even, as well as separate faith-based social services. So because people are seen as having their own culture, with government willing to outsource its services to regressive faith organizations, who basically manage minority communities on behalf of the state. So we no longer have the universal concept of people being citizens irrespective of their beliefs and backgrounds. And it’s not just in Britain, it’s a global policy. So it’s like what happened after the Iraq war, it’s the Iraq-ization of the world, split into different ethnicities and religions and never just human. And it segregates and separates people to the point where it seems like we no longer have a common humanity, and the only thing that matters is religion and culture.

Don’t forget, also, that even people within a religion practice it in many different ways. And when you say that this is one “Muslim community,” for example, you’re basically holding as the marker of that community those with power, those with influence, the most regressive and conservative forces. And given that we live in an age in which Islamism has so much power and influence, it’s actually handing over communities to the Islamists. That’s a very dangerous thing, so we need to be clear about these distinctions.

CA:  Would you say, then, that people just need to maintain a clear distinction between “Islam” and “Islamism”? Or would you say that Islam itself is inherently problematic?

MN: There’s a huge difference between Islamism and Islam, in the sense that Islamism is a political movement; it has state power. Obviously that’s very different from a belief. Though I think all religions, including Islam, are regressive and inhuman, filled with homophobia and misogyny. I think we have so many wonderful ideas in the 21st century, that we don’t need to rely on something passé. But that’s my personal opinion, that doesn’t mean people don’t have a right to their religion and to believe what they want.

Religion is a lived experience, not just a faith. A lot of people are born into the faith, like myself, you don’t really have a choice because of the geography where you are born or the parents to whom you are born. You’re deemed to be that religion, so religious affiliation has very little choice involved. You’ve got it stamped on you from birth, often it’s even stamped in your passport without your permission. So you grow into this religion without really choosing what you want, and what you don’t want. So you find that there are plenty of Muslims who have never read the Koran; they know religion from their parents and schools. That’s why not everyone who is Muslim agrees with everything in the Koran, the same way not everyone who is Christian agrees with the Old Testament. People pick and choose, and they mold religion in a way that’s suitable to their lives. That’s why making distinction between Islam and Islamism versus ordinary believers is important.

CA: Does that, then, speak to the possibility for a moderate and liberal reformed version of Islam? Or do you believe ultimately that’s not possible?

MN: For myself, as an atheist, I really don’t care what people want to do with their religion. That’s their prerogative, but the more religion is deformed the better. The more it’s dragged into the 21st Century, the better. But when it’s in a position of political power, then it’s a power question rather than a question of personal belief, and it has life and death implications for people. So then it’s an issue for all of us. For me, I think if we can push it out of the state, out of power, it will actually allow a lot of people to breathe. Not just ex-Muslims like myself, but many practicing Muslims as well, who don’t want to live according to the prescriptions of the Iranian regime or the Saudi regime or ISIS, or even the supposedly nicer versions like the Jordanian one. They don’t want to abide by Jordanian law or Indonesian law.

CA: You say Islamism is a political movement. To what extent, then, should we be talking about its political rather than religious causes? A lot of young men who join ISIS, for example, are disaffected and alienated rather than being particularly devout. Is this really a poisonous set of ideas, or is it a product of people’s conditions?

MN: Of course you can believe in Islam and not be an Islamist, like my parents for example. So it’s not necessarily religion that’s the problem. There are a lot of religious people who I work with, who are active on my side against Islamism and for equality. But when it comes to Islamism as a political movement, to say simply that there are young people who are disaffected isn’t the whole truth. There are many people who are disaffected who don’t turn out to be fascists. The same is true in the West; you’ve got lots of people for example who are white and working class. Well, some might become fascists, other will become unionists and leftists. I’m someone who is disaffected too but who has gone toward the left. I think this equation, with the oppressed always necessarily becoming fascists, is quite offensive when you think about it, because there are many who aren’t.

Unfortunately, I think because the mainstream left, the visible left, is very much pro-Islamist, you have people who actually want to join the left because they care about social justice ultimately being handed over to the Islamists. I’ve met ex-Muslims who became Islamists via Stop the War Coalition meetings and such.

CA: Most of the people you’re talking about would vigorously dispute that they are in any way pro-Islamist. They would say they are acting against racism, rather than acting in favor of Islamism.

MN: I can’t see how they can deny it, when they actively defend the Iranian regime, actively defend the Assad regime, and in doing so betray the working class and the left. They have segregated meetings, they call for women to veil in support of women in Iraq, they’ve done this at meetings I’ve been in. They’ve kicked out activists, friends of mine, who were at the Stop the War protests with banners against the Iranian regime. They’re actively defending a section of Islamists, and so for them to say that’s not the case, is dishonest at the very least. As Algerian sociologist Marieme Helie Lucas says: “By supporting fundamentalists, they simply chose one camp in a political struggle, without acknowledging it.”

CA: Obviously you find yourself in a somewhat rare position, seeing that you’re uncomfortable both with the Left and Right perspectives on this…

MN: I don’t think I hold a very rare position. There are so many like me, which is why I feel quite comfortable with my position, I don’t feel like I need to back down, I don’t feel alone, I don’t feel under attack. One of the things I am trying to show is that my position, this left, human-centered perspective, is actually very mainstream, including in Iran, Iraq. In Iraq you see mass demonstrations with placards saying “Neither Shia nor Sunni but Secularism,” but you won’t find one media outlet reporting on that. Everyone knows bin Laden’s name, but how many people know those heroes in the Middle East and North Africa who are leftists and secularists and fighting at great risk to their lives? That’s where I see myself coming from, considering my background as an Iranian and the Iranian revolution, which was left-leaning but which was expropriated by the forces of Islamism.

The Rise of the Ruth Bader Ginsburg Cult

How a wizened, middle-of-the-road jurist became a T-shirt icon for millennial feminists…

The past two years have seen an explosion of pop culture affection for 82-year-old Supreme Court Justice Ruth Bader Ginsburg, much of it under the moniker “Notorious RBG.” The name is a riff on “Notorious BIG,” one of the most celebrated rappers of all time, and now adorns t-shirts, hoodies, and a popular Tumblr page. A fiery Ginsburg caricature has been played on Saturday Night Live, an opera has been written about her, and Warholian screen prints depict her regal visage complete with crown and jabot. After spending several decades quietly inhabiting the minor limelight afforded to high-ranking American jurists, Ginsburg has suddenly found herself an icon.

Now Irin Carmon and Shana Knizhnik have written an entire book, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (Dey Street Books, $19.99), based on the “Notorious RBG” sobriquet, a curious collection of biography, excerpts from Supreme Court opinions, cartoons, and a recipe for pork loin from the Justice’s late husband. The book does not attempt to  grapple with why this surge of Ginsburg-mania has come about—it is thoroughly an example of the phenomenon rather than an attempt to analyze it. But as the most fully-realized embodiment of the trend, Notorious RBG is a helpful window into Ruth Bader Ginsburg’s journey from Supreme Court Justice to viral meme.

Calling the book a hagiography could hardly offend its authors—most biographies don’t conclude their introduction with “We are frankly in awe of what we’ve learned about her, and we’re pretty excited to share it with you.” Adoration oozes from the page with every tidbit and factoid the authors giddily present. So we learn that Justice Ginsburg began smoking because she was brave. When she argued before a case before an unusually quiet Supreme Court, the authors infer that she stunned the nine Justices into silence.

This incessant lionizing can border on the embarrassing, even in its most lighthearted and transparent form. The authors tell the (possibly apocryphal) story of Justice Ginsberg rejecting an applicant for a clerkship who had included an error in his application with a personal letter telling him to “note the typo.” Carmon and Knizhnik see this as a charming example of Ginsburg’s attention to detail. Readers may not find it quite so endearing to see one of the country’s most powerful people going out of her way to pointlessly humiliate a young job applicant.

The desire to keep the book reverential forces the authors into some contradictory postures, as Notorious RBG alternates between referring to the Justice, admiringly, as a radical with referring to her, also admiringly, as a center-left pragmatist. Ginsburg must be faultless, thus she is both stubborn and diplomatic, both activist and restrained, both moderate and audacious.

But when you get down to it, the fundamental premise of the pop culture adulation for Ginsburg is that she is a headstrong liberal firebrand. Of course, much of the ordinary work of a Supreme Court justice consists of painstakingly adjudicating mundane interpretive questions, such as deciding what standard of review to apply in evaluating administrative determinations of the definition of “U.S. waters.” (see United States Army Corps of Engineers v. Hawkes Co., Inc.) But such matters leave little room for gutsy feminist ass-kicking, and elucidating the federal procedure controversies of the day does not earn one’s face on Amy Schumer’s tank top.

Making an activist hero out of an administrative functionary like a Supreme Court Justice was therefore always going to require a bit of distortion. Yet a reader of Notorious RBG (even after using the book to prepare a delicious pork loin) might be left wondering whether the characterization of Ginsburg as a fearless champion of progressive principles can be defended, even by the relaxed standards necessary for evaluating Justices.

The task of glorifying Ginsburg is made easier if one conflates her early career as a litigator with her later tenure as a justice. For despite Notorious RBG’s portrayal of Ginsburg’s life and work as a unified package, there are distinctly different phases, and it’s difficult to appreciate Ginsburg’s complexity and evolution without separating the 30-something feminist dynamo from the 70-something robed bureaucrat.

In her early years, Ruth Bader Ginsburg was a spectacular law student in the face of rampant sexism and personal challenges. She became a formidable civil rights lawyer, dedicating her career to eradicating laws that discriminated on the basis of gender. Her use of male plaintiffs to demonstrate how sex-based classifications harmed men and women alike was shrewd strategy and smart politics. If you were a young, fiery liberal looking for a role model, you could do worse than Ruth Bader Ginsburg, civil rights lawyer.

Yet the recent outpouring of ardor has celebrated not just this period, but her time the court as well, and Justice Ginsburg is a different story. Empirical measurements of ideology confirm the eye test: Ginsburg is a center-left Justice roughly in line with President Obama’s two appointees and Stephen Breyer. This gang is less liberal than the recently retired John Paul Stevens (appointed by Republican President Gerald Ford) and miles to the right of recent justices Thurgood Marshall and William Brennan. Of course, in today’s court, which contains four of the most conservative justices of the last century, that still makes them the left flank. But even measured against her decidedly non-radical judicial peers, Ginsburg is a cautious centrist. Thus while she might maintain broadly progressive sympathies, she is equally willing to allow the government to threaten the withdrawl of funding in order to punish universities that ban discriminatory job recruitment by the military (Rumsfeld v. Forum for Academic & Institutional Rights, Inc.) or to rule against paying overtime to Amazon warehouse workers (as in Integrity Staffing Solutions v. Busk).

Ginsburg’s liberal supporters—whose raves fill Notorious RBG—portray her record differently. Forced to accept that her voting pattern is nothing like that of Thurgood Marshall or legendary radical William O. Douglas (who fashioned a constitutional right to birth control out of thin air, and famously argued that trees had the right to be represented in court), they treat her moderation as cunning. The law, after all, requires five votes to change, not one. What looks on an empiricist’s scatterplot like a fainthearted liberal, they argue, is instead a practical coalition builder. Ginsburg is merely being strategic.

This argument is too clever by half. One does not need to be meek and compromising to advance one’s legal views. Justice Scalia, Ginsburg’s best friend on the court, has not let his successful coalition building prevent him from being an outspoken, even crude conservative. Scalia has stated that he writes his dissents for the law students, and over the course of his tenure the Court has gradually slid rightward to join him on several important issues. The ability of Supreme Court justices to set agendas through nonbinding rhetoric is one of their most potent.

Ruth Bader Ginsburg undoubtedly understands this, and has given her fair share of blistering dissents. But on the issues where she is silent, her abstention from controversy can be difficult to defend. Where criminal justice is concerned, for example, she has trailed her colleagues in recognizing the stakes, and may have done real harm to large numbers of vulnerable people through her refusal to engage.

Prolonged solitary confinement, the practice of locking one or two people in a small area without meaningful social contact for over twenty-two hours per day for long periods of time, is a widespread practice in American prisons. This starvation of social contact is devastating to the mental and physical health of people in solitary. For decades, psychologists have considered the practice so damaging as to constitute torture.

In 2009, the American cultural elite caught on to the practice’s horrors in the typical way: The New Yorker published a thorough, clinical condemnation of solitary confinement by its resident medical explainer Atul Gawande. If the scientific consensus that the practice constituted torture was not enough to end the practice, one might imagine the burst of outrage the article provoked to have finished it off. Even a basic syllogism seems like it should have led the courts to eradicate long-term solitary confinement for good: the practice is torture; torturing people violates the Constitution; the practice violates the Constitution.

Not so. Although a handful of lower court cases in recent years have found solitary confinement unconstitutional when applied to certain particularly vulnerable groups such as the seriously mentally ill, the law has lagged behind the science by not mandating the practice’s abolition.


Last term, in the mostly unrelated case of Davis v. Ayala, Justice Anthony Kennedy wrote a lengthy concurrence condemning solitary confinement. He described the new and growing awareness that solitary confinement caused massive harm and closed by inviting a challenge to the practice: “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.” Most notably, Justice Kennedy made no reference to any particularly vulnerable group, instead suggesting that long-term solitary confinement may be unconstitutional for all. Justice Ginsburg did not join the concurrence.

The reaction to Justice Kennedy was significant. The New York Times dedicated an editorial to the concurrence and the Los Angeles Times wrote a story on it. Lower courts have already begun quoting Justice Kennedy’s language when discussing cases on solitary confinement. When long-term solitary confinement is abolished, Justice Kennedy’s concurrence will appear in the history.

The example, in which Ginsburg sat out an opportunity to condemn the brutal and illegal conditions of America’s most marginalized people, is not trivial. Mass incarceration and the reluctance of the federal judiciary to check it are major stories of our time. The number of people we send to prison, the length of time they serve there, and the conditions in which they live are collectively among the country’s biggest civil rights disasters. They’re also among the few social problems that the Court is actually well-positioned to do something about. Constitutional litigating is generally a feeble means of repairing disastrous public policies, but it should be perfectly designed to prohibit government officials from shooting children in public parks, raping adults in American jails, and torturing people in prison through the use of long-term solitary confinement.

Alas, the Supreme Court has not seen fit to give the Constitution such a reading, and Justice Ginsburg has been as much a bystander as many of her peers on the Court. Take just the last few terms. In Heien v. North Carolina, the court held that the police may justifiably pull over cars if they believe they are violating the law even if the police are misunderstanding the law, so long as the mistake was reasonable. In Taylor v. Barkes, the Court held that the family of a suicidal man who was jailed and then killed himself could not sue the jail for failing to implement anti-suicide measures. In Plumhoff v. Rickard, the court held that the family of two men could not sue the police after they had shot and killed them for fleeing a police stop. Ginsburg joined the opinion in every case.

In fact, she has gone so far as to join the conservatives on criminal justice, even when all of her fellow liberals have sided with a criminal defendant. In Samson v. California, the Court decided the issue of whether police could conduct warrantless searches of parolees merely because they were on parole. Instead of joining the liberal dissenters, Ginsburg signed onto Clarence Thomas’s majority opinion in favor of the police.

In January, the Court issued its opinion in the case of Kansas v. Carr. The Kansas Supreme Court had overturned a pair of death sentences, on the grounds that the defendants’ Eighth Amendment rights had been violated in the instructions given to the jury. The U.S. Supremes swooped in, informing Kansas that it had made a mistake; nobody’s Eighth Amendment rights had been violated, thus the defendants ought to have continued unimpeded along the path toward execution. The Court’s decision was 8-1, the lone dissenter being Sonia Sotomayor. Ginsburg put her name on Justice Scalia’s majority opinion instead.

It was no random chance that made Justice Sotomayor the particular dissenter. Since her appointment in 2009, Sotomayor has emerged as a strong opponent of the more egregiously inhumane aspects of American criminal justice. She has repeatedly taken on all eight of her colleagues; last year she lambasted them for shielding a police officer from legal liability for shooting a man during a high-speed chase. Sotomayor wrote that by “sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.” The other justices, including Ginsburg, felt the case so unimportant that they dispensed of it with a brief, unsigned opinion.

During her time on the court, Sotomayor has been recognized as making a conscious effort to educate her fellow justices and the American public about issues of race and criminal justice. Writing in The New Republic, David Fontana has said that Sotomayor’s spirited fight against racism makes her a “national treasure,” and that “Sotomayor, uniquely among recent liberal justices, has used her public appearances to effectively communicate her liberal perspective on the constitution to regular members of the public, in addition to legal and academic elites.” Importantly, Sotomayor also sees herself as an “outsider,” uncomfortable with the pomp and affectation of her eight judicial brethren.

In Slate, Mark Joseph Stern contrasted Sotomayor’s perceptiveness about police and prisons issues with Ginsburg’s indifference: “When it comes to understanding the systemic flaws and violent behavior of America’s criminal justice system, there’s no one quite like Justice Sonia Sotomayor…Sorry, Notorious R.B.G. groupies, but [Ruth Bader Ginsburg] has a bit of a law-and-order streak.” (This despite Sotomayor being an ex-prosecutor, while Ginsburg worked for the ACLU.)

Carmon and Knizhnik discuss none of this, instead treating as an implicit assumption that Ginsburg’s aggressive battle for justice extends from gender equality to fighting racism. Of course, Notorious RBG is not obligated to interrogate every facet of her career, and Ginsburg need not be perfect to be worthy of admiration. But the assumption that she is a role model on racial inequality is not an ancillary question. Racial inequality is a defining feature of American life and a national disgrace. Racial animus is also the bedrock of mass incarceration, which erupted partially on Ginsburg’s watch and which she has expressed little interest in attempting to eliminate.

Carmon and Knizhnik must surely be aware of this. After all, the very opening scene of Notorious RBG depicts Ginsburg reading her fiery dissent in Shelby County v. Holder, an important voting rights case in which the court implied that Black voters in the South no longer needed Congress’s protection from their states’ efforts at disenfranchising them. (The intervening years have proved the Court wrong, if there was ever any question.) The Court, Notorious RBG notes, was “threatening the progress for which she had fought so hard.” As for Ginsburg, “when the work is justice, she has every intention to see it to the end. RBG has always been about doing the work.” In the lengthy discussion of her career to follow, one might therefore expect to read about Ginsburg fighting so hard for progress in the eradication of racism; doing the work; seeing it to the end.

Notorious RBG barely mentions race again. The authors seem to believe that because of Ginsburg’s many accomplishments fighting for women’s rights, we can safely assume that she was a force for good in the fight against racism without considering the evidence.

In fact, one of Notorious RBG’s few mentions of race is particularly strange. In the book’s discussion of Bush v. Gore, the contentious decision that decided the 2000 presidential election, the authors mention that Ginsburg’s draft of her dissent had a footnote alluding to the possible suppression of Black voters in Florida. Justice Scalia purportedly responded to this draft by flying into a rage, telling Ginsburg that she was using “Al Sharpton tactics.” Ginsburg removed the footnote before it saw the light of day.

This anecdote’s inclusion in the book is baffling. Notorious RBG unrepentantly fawns over Ginsburg as a civil rights hero. Yet in this story, Ginsburg contemplates calling attention to straightforward, anti-Black racism in the most facile of ways. But when her friend Justice Scalia plucks an argument straight from right-wing talk radio to shame her out of doing so, Ginsburg instantly capitulates. Some commitment to racial equality.

Ginsburg’s legendary chumminess with the late Justice Scalia should be another red flag in itself. Here was a man openly (and brashly) against every value Ginsburg supposedly holds. He suggested that affirmative action may be keeping African Americans from attending the “slower-tracked” schools where they belong. He would have seen Roe v. Wade overturned, and the reproductive rights Ginsburg fought for completely stripped. He called the Voting Rights Act a “racial entitlement” and consistently defended the legitimacy of anti-gay prejudice. Not the sort of character one would expect Ginsburg to attend the opera with.

Yet somehow these two opposites managed to get along and maintain mutual respect and good humor, and a legendary extrajudicial friendship. How? On the one hand, it seems a charming parable about the setting aside of differences and the embracing of common ground. But it’s also odd that anyone who takes their values seriously could simply “set aside” the fact that, by their own metric, their friend was one of the most powerful enforcers of systematized bigotry and repression in the country. (What can you say? “Oh, that was just his day job”?) Now, perhaps Ginsburg would reject that description of Scalia’s position. But if you think the rights of black and gay people are of major moral consequence, and you think Scalia’s work profoundly undermined those rights, it’s difficult to escape the conclusion that this was not someone you ought to regularly be taking to dinner.

The perverse Scalia/Ginsburg friendship speaks to a disturbing trait shared by both the Court itself and the specific Notorious RBG approach to understanding it. This is the tendency to become wrapped up in the genteel, sober, ritualized world of the Court’s chambers, and forget the human consequences of the work that is done there. A torture victim would not so easily be able to compartmentalize Scalia’s repeated defenses of torture. A gay or trans person might have had a difficult time going out and watching Scalia eat risotto and tell jokes, knowing the world he would build for them if he could. During Scalia and Ginsburg’s occasional public appearances together, Scalia usually cracked his line “What’s not to like [about her]? …Except her views on the law.” Well hah, hah. Yet “her views on law” embody her fundamental conception of justice and morality (at least ostensibly). Only in the detached and rarified world of the Court could someone accept such a remark as a gentle joke among colleagues rather than a nasty dismissal of everything one holds dear, including the basic rights of women.

In 2011, several public figures, including Harvard Law Professor Randall Kennedy, urged Justice Ginsburg retire while she could be sure that President Obama could pick her successor. Ginsburg was seventy-eight and had survived cancer twice. (Kennedy also called for the retirement of the only slightly-younger Stephen Breyer.) Ginsburg refused to pay any heed to the suggestion, and appears determined to remain on the Court until it pleases her to depart. (With Republicans now firmly committed to judicial obstructionism, it may even be too late fo her to change her mind and assure an Obama-nominated successor.) Notorious RBG addresses this controversy in its introduction, and the response is worth considering in full:

Historically, one way women have lost power is by being nudged out the door to make room for someone else. Not long before pop culture discovered RBG, liberal law professors and commentators began telling her the best thing she could do for what she cared about was to quit, so that President Barack Obama could appoint a successor. RBG, ardently devoted to her job, has mostly brushed that dirt off her shoulder. Her refusal to meekly shuffle off the stage has been another public, high-stakes act of defiance.

It should first be noted that “women” as a whole would are unlikely to lose any power by Ginsburg’s retirement; it is widely assumed that any selection Obama would make to replace Ginsburg would be a woman. But other contemporaneous responses to the call to retire made more sophisticated claims that they whiffed of sexism. Emily Bazelon wrote in Slate that since Ginsburg is “a small, slender woman who speaks in low tones and looks like a bird… people tend to assume she is frail when in fact she is anything but.” This point is important. Even those of us who find excellent, logical reasons to urge Ginsburg to retire should concede that research on implicit bias makes those excellent, logical reasons inherently suspect. When they happen to coincide with the outcome that traditional gender norms or racial animus would suggest—such as urging a slight woman to step down from her powerful position because she is too frail—alarm bells should go off.

Yet the main argument falls to bits upon a gentle prodding. First, the charge of sexism is hard to maintain so long as one equally favors the retirement of the similarly senescent Justice Breyer. (Ageism may be another matter, though it should hardly be unduly discriminatory to point out that the elderly have a noticeable tendency to suddenly expire.) Second, it’s very strange indeed to defend against the sexism experienced by Ginsburg without weighing it against the sexism experienced by the 162 million other women who live in the United States and have to live with the Supreme Court’s rulings. The authors of Notorious RBG must find important the actual work the Supreme Court does—they wrote a whole book about a Supreme Court justice! Yet they do not even engage with the argument that Justice Ginsburg is actually putting the rights of people at risk by entering her mid-eighties on a Supreme Court with four pathologically conservative justices, all salivating at the prospect of recruiting a fifth and restoring the toxic ideological configuration of the Scalia years. Justice Ginsburg’s “public, high-stakes act of defiance” may be gratifying and symbolically powerful, but if the end result is the reversal of Roe, can a victory for feminism truly be claimed?  (In fact, replacing Ginsburg might actually help women’s rights, at least the rights of women prisoners, if someone more Sotomayor-ish were given the post.)

One of the authors’ favored metaphors can explain how they so blithely dismissed the merits of allowing President Obama to pick Ginsburg’s successor: that of the court as “stage.” Ginsburg refused “to meekly shuffle off the stage.” It’s a word commonly used in descriptions of Supreme Court proceedings. Indeed, Notorious RBG on its opening page notes that “What happens inside the hushed chamber is pure theater.” No, it is not. It may be theatrical, but very few of your ordinary community stage productions retain the power to impose or revoke the death penalty.

A less glib reply to the pro-retirement argument came from ex-New York Times court-watcher Linda Greenhouse. Greenhouse explained Ginsburg’s intransigence thusly:

“I think from her perspective she is taking a long view of history, not a case by case one, or a term by term one…I think she feels that it belittles and diminishes the court to have retirements so obviously timed for political reasons.”

There, in a nutshell, is the difference between Ginsburg and the people her work affects: she and her followers can afford to take the long view, to see political fights as important without seeing them as an end-all, be-all struggle. From the tables of the Supreme Court cafeteria or the leather chairs of one’s chambers, lofty abstractions like “the preservation of judicial dignity” can appear to carry equal weight to questions of actual human consequences. One’s fellow justices can be droll and amiable drinking companions, even if they wouldn’t bat an eyelid at seeing homosexuals put in prison. And “political reasons” can appear as something tawdry and unbecoming, even though they refer to matters like “keeping children from being put in solitary confinement” and “making sure colleges don’t exclude black people.” What a luxury it surely is to be able to relax and take “the long view” of these questions, a luxury unshared by the victims of the Court’s judgments.

So one must adopt a somewhat cynical hypothesis as to why this middle-of-the-road Justice is the object of the cartoons, the hoodies, and this coffee table ode: the readers of Notorious RBG spend as little time thinking about the people abused in American prisons and jails as the Notorious RBG herself does. Elsewhere, people in America’s worst prisons, their families, and their advocates have to hope that either a Democrat will win the 2016 presidential election or that Justice Ginsburg will make it to 87 in good health. If neither come to pass, thousands of additional people may be assaulted, raped, or killed in American prisons and jails, and it’s likely that most of the people wearing “Notorious RBG” paraphernalia will never know their names.

What’s In Our March/April Issue

The table of contents for our March/April issue…

Current Affairs‘s March-April print issue is now on sale! You can find it at bookstores across the country (if your bookstore doesn’t carry it, tell them to rectify the oversight immediately). or purchase single copies from our online store. It looks somewhat like this:


We’ve filled Current Affairs with remarkable material from some of the country’s best writers. And right now, it’s all exclusive to print, so order a copy right away.

When you open it up, you’ll find:

  • The Rise of the Ruth Bader Ginsburg Cult – We examine the curious recent trend of adulation for “The Notorious RBG.” Does her judicial career merit the praise? Or should she perhaps be notorious for a rather different reason?
  • The Abominable Aesthetic Tastes of the Global Rich – Amber A’Lee Frost looks at the kind of art collected by the super-wealthy. Why is it so unbelievably tacky?
  • My Police State Diary – Journalist Belén Fernández reports on the curious mixture of beauty and totalitarianism to be found in the country Herman Cain once referred to as “U-beki-beki-beki-stan-stan.”
  • Mass Incarceration & the Limits of Prose – We’ve recently seen a flurry of books about prisons and the dysfunctions of American criminal justice. But why are they all kind of… failures? Is it even possible to convey the nature of prison in writing?
  • Elizabeth Gilbert and the Pinterest Fantasy Life – Elizabeth Gilbert achieved international success with Eat, Pray, Love. Now she’s back with a book of writing tips. According to Yasmin Nair, they amount to: be rich so you’ll have lots of free time to write.
  • The Rancid Politics of Online Feminism – Abi Wilkinson looks at the world of Twitter feminism, and its brutal, hostile factionalism. Can’t feminists all get along? Not online they can’t, it seems.
  • Oh God, Please Not Libertarianism – We look at some new books by libertarians. Are they bad? Yes.
  • PlusOur report on what the New York Times has been up to, puzzles and coloring activities, Nazi cowboys, numerous borderline libels, some absurd sociology diagrams, our offer to buy The New Republic, ludicrous fake advertisements, and a whole hell of a lot more.

We’ve packed this issue with everything wonderful we can think of. It’s smart, brutal, and classy as hell. Get yours today.

Nominating a Presidential Candidate Under Active FBI Investigation Is An Incredibly Risky Gamble

Unless, of course, there is some kind of separate system of justice for the powerful…

The 2016 election has many bizarre aspects, but surely one of the most bizarre is the fact that one of the main presidential candidates is under active investigation by the FBI, and that this is somehow being treated as unimportant or inconsequential.

Of course, everyone knows that Hillary Clinton has a pending FBI investigation, and everyone has a vague sense that it is continuing to grow rather than disappear, and that theoretically the possible consequences include indictment and prosecution. But for some reason a major investigation concerning a presidential candidate isn’t being widely treated as the potentially catastrophic scandal and electability risk that it is. Nominating a presidential candidate who could potentially be subject to prosecution under the Espionage Act should seem like an insane gamble for a party to take. Why, then, isn’t it being taken more seriously?

There’s no mystery as to the basic facts, which by now are wearingly familiar to all. When Hillary Clinton was Secretary of State, she stored much of her email on a private server, free of ordinary oversight and without the government’s security protocols in place. While Clinton insisted none of these unsecured emails contained classified information, according to a Washington Post investigation more than 100 of the emails that contained classified information were sent by Mrs Clinton herself using her private server.” 

The government takes its classification regime extremely seriously, and the FBI has confirmed that it is conducting a review of unspecified scope as part of “ongoing law enforcement efforts.” And the FBI investigation is only “foremost among a half-dozen inquiries and legal proceedings” examining the matter. In addition to the FBI’s investigation, “there are continuing inquiries into Mrs. Clinton’s emails by the inspector general of the State Department, the inspector general of the intelligence agencies, the State Department’s Bureau of Diplomatic Security and the House Select Committee on Benghazi.”

Now, the IT specialist who set up Clinton’s server has struck a deal with the Justice Department for immunity from prosecution, and has been (for what it’s worth) rumored to be a “devastating witness.” Nobody knows what the specialist is revealing, but this sort of development certainly isn’t the sign of an investigation wrapping up. The Hill has quoted former FBI officials saying that “a decision on whether to file charges against Clinton or her top aides could come later this year.”

PolitFact has insisted that none of this actually amounts to an “investigation of Clinton” and that calling it such is a half-truth. But they conceded that “Clinton’s actions are clearly front-and-center in an FBI investigation,” and that the details of the investigation remain too opaque to actually conclude anything concrete in Clinton’s favor. And while PolitiFact implies that the case remains a “security referral” without criminal implications, The New York Times has since reported that while the issue began as a security inquiry, “multiple law enforcement officials said the matter quickly became an investigation into whether anyone had committed a crime in handling classified information.”

Plenty of people have insisted Clinton’s conduct, while unwise, doesn’t rise to the level of the criminal. In the Washington Post, Ruth Marcus said that while it was possible to construct a theory as to why Clinton’s conduct was illegal, it would require such a stretch that no responsible prosecutor would bring such a charge. Marcus says that those who compare the case to other “mishandling of classified information” prosecutions such as that of David Petraeus miss a crucial fact: in the other instances, the classified information was handed over to someone unauthorized to view it, or treated with far greater negligence (by being left in a dumpster, for instance).

But this is not true. Examine, for instance, the case of Bryan Nishimura, a Naval reservist who deployed during Afghanistan during 2007 and 2008. Nishimura was prosecuted when he stored classified information on unsecured devices. In its press release announcing Nishimura’s plea agreement, the FBI summarized the facts as follows:

In his role as a Regional Engineer for the U.S. military in Afghanistan, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. He carried such classified materials on his unauthorized media when he traveled off-base in Afghanistan and, ultimately, carried those materials back to the United States at the end of his deployment. In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system… The investigation did not reveal evidence that Nishimura intended to distribute classified information to unauthorized personnel. 

See if you can find any meaningful distinction between Nishimura’s conduct and Clinton’s. Just as with Clinton, nobody alleges that the action caused harm, or that Nishimura used it for any nefarious purposes. Just as with Clinton, nobody alleges that Nishimura disclosed or intended to disclose the information to any unauthorized person. The only issue here is that Nishimura kept classified materials on unauthorized media, precisely the same thing Clinton is alleged to have done.

The same is true in the case of John Deutch, a CIA officer whose laptops were found to contain classified material. Deutch had agreed to plead to a misdemeanor offense of mishandling classified documents when he was pardoned by Bill Clinton. And then there was the case of Wen Ho Lee, relentlessly hounded by the government and put in solitary confinement for nine months on suspicion of spying after downloading classified information, was a particularly heinous low point. And as Glenn Greenwald has documented, there are plenty of other examples to choose from:

NSA whistleblower Tom Drake, for instance, faced years in prison, and ultimately had his career destroyed, based on the Obama DOJ’s claims that he “mishandled” classified information (it included information that was not formally classified at the time but was retroactively decreed to be such)… Last year, a Naval officer was convicted of mishandling classified information also in the absence of any intent to distribute it.

It’s strange, then, for Ruth Marcus (and the others who insist that Clinton’s conduct was lawful) to dwell on the differences between Clinton’s behavior and David Petraeus’s, while failing to mention any relevant differences between Clinton’s case and that of Nishimura or Deutch.

Clinton’s own defenses haven’t been particularly reassuring, either. Initially, Clinton’s campaign insisted that none of the material sent on the unsecured server was classified: “Hillary didn’t send any classified materials over email: Hillary only used her personal account for unclassified email.” Then, the Clinton campaign admitted that classified information had been sent, but insisted that the initial statement was still simultaneously true because none of the material was “marked” classified “at the time.” That defense was laughable on its face, because everyone at every level of the State Department is trained to recognize what sort of information is presumptively classified and should be handled accordingly. Of all people, the highly experienced Hillary Clinton would be the last to be oblivious to basic departmental protocol.

But once it became difficult to deny that classified information was sent, Clinton’s team shifted their stance. They began calling the situation “overclassification run amok,” saying that “our system for determining what ought to be classified is broken,” and her defenders said the Espionage Act was “antiquated.” Note, though, how different this is from saying that the material wasn’t classified. It is, in fact, an admission that the material was classified. It essentially concedes that Clinton may well have committed a prosecutable offense. This is not a defense that says the law was not violated, but that the law is unfair.

Unfortunately for Clinton, protesting that the classification laws should be different doesn’t mean that they are different. The fact that the Clinton campaign are casting around the word “overclassification” should be deeply alarming, because talking about overclassification is the last refuge of someone who knows that by the letter of the law, they have mishandled classified information.

Sometimes the Clinton campaign has even given up on arguing the facts, and begun impugning the motives of the investigators. The Intelligence Community inspector general recently announced that several Clinton emails were found to be “Special Access Programs,” a classification above Top Secret reserved for “exceptional” circumstances in which a very limited number of people should have access. This meant that “the secret information on Hillary Clinton’s personal email was more highly classified than previously understood.” But rather than explaining why this was false, the campaign insisted that the intelligence community inspector general is not operating in good faith” and that the inspector general was colluding with Republicans.

At the very least, then, it’s clear that there is potential lawbreaking here, something that logically should present a gigantic red flag for a party trying to select a nominee. As The New Yorker‘s Ryan Lizza put it understatedly, “however these [investigations] turn out, it is unusual for a presumptive nominee and some of her current and former aides to be under investigation by the F.B.I.” If there is an active investigation into a crime that the nominee could very well be convicted of, and that nominee’s own reassurances seem cagey and evasive, running that person in a general election would seem like a gamble bordering on insanity. 

The real curious thing about the whole affair, however, is that nobody seems to believe there’s actually much risk to the campaign. Why is that? If the evidence seems like it may well be enough to make out a case (even if there is a plausible defense theory), shouldn’t this be concerning? Why isn’t it a major topic in the nominating contest?

Lizza believes it’s because Bernie Sanders has downplayed the issue and refused to campaign on it. Lizza says that many Democrats are alarmed that the issue is not being taken more seriously. He quotes a senior Democratic consultant saying:

The person that the White House cleared the field for, and that everyone has fallen in line for, has three federal investigations going on… The guy who set up the system for her took the Fifth. You’re not supposed to read anything into that, but please. It’s the elephant in the room, and Sanders took it off the table.

But perhaps the issue goes beyond Sanders’s refusal to make an issue of the investigations. Part of the scandal’s seeming negligibility has to simply be that nobody believes there is any chance of the Obama administration prosecuting Hillary Clinton. For a Democratic president to tank the prospects of the Democratic nominee by prosecuting her over something that appears both harmless and trivial seems unthinkable. Regardless of all questions about what the law is and whether she violated it, a criminal prosecution seems beyond the realm of reasonable possibility.

And it very well may be. It’s certainly difficult to imagine an indictment coming down, and Clinton even having to plead to some tiny misdemeanor. It’s only because it seems so unthinkable that Clinton can get away with answering the question “Will you drop out if indicted?” by saying “My goodness. That is not going to happen. I’m not even answering that question.”

But the very fact that this is unimaginable implies something troubling: people have an entirely different collective understanding of what justice looks like for those with political power and those without it, and that difference is simply accepted as natural.

Recall Bryan Nishimura’s case. The facts are the same. Yet somehow Nishimura’s prosecution raises no eyebrows, seems like business-as-usual for the FBI. If prosecuting Clinton is not just unlikely but inconceivable, but prosecuting Nishimura seems routine (or at least not unlikely, even if unjust), then there’s an implicit double standard at play. Even if we believe there are relevant differences in the facts, the level of difference in our expectations implies a passive acceptance of an openly inconsistent set of laws. The central idea behind the “rule of law” is that all are treated equally before the law, but here we have no expectation that the Democratic presidential nominee will be subject to the same strict standard as a minor agency functionary.

In fact, for any other individual than Hillary Clinton, one would be foolish to doubt the Obama Administration’s willingness to prosecute. The administration has prosecuted individuals under the Espionage Act more than every previous presidential administration combined. It has waged a relentless war on whistleblowers, and its promise to be “the most transparent administration ever” has become an ironic Orwellian joke. If anyone doesn’t view the Espionage Act as “antiquated,” it’s the Obama Justice Department. Chelsea Manning sits in prison because of the Espionage Act under Obama. Journalists worry about their freedom to report because of the Espionage Act under Obama.

Hillary Clinton knows all this, of course, because Clinton was part of that very culture of secrecy. During her time as Secretary of State, when the Wikileaks documents were revealed, an anonymous official in the Clinton state department threatened that students seeking public service jobs could have their careers jeopardized for so much as tweeting about the Wikileaks documents, even though they were freely available all over the internet. The official warned that this would “call into question your ability to deal with confidential information.” (Clinton called the leak itself “an attack on the international community.”)

Now, of course, Clinton’s perspective has completely altered, and the email scandal has got the former Secretary of State talking like Julian Assange. So for Clinton’s supporters the Espionage Act goes from an essential tool for preserving national security to an antiquated, overreaching infringement on both liberty and common sense.

It’s worth pointing out that is an antiquated, overreaching infringement on both liberty and common sense. Even the often pro-government Brookings Institution fellow Benjamin Wittes has called the act “hopelessly broad” and pointed out the terrifying fact “that from a journalistic point of view looks like pretty normal journalistic activity could be considered aiding and abetting a violation of the Espionage Act.”

So everything the Clinton campaign now says about the excessive secrecy of the national security state completely true. The present system of classification is paranoid, out-of-control, and Kafkaesque. According to Nieman Reports:

The universe of classified information includes not only genuine national security secrets, such as confidential intelligence sources or advanced military technologies, but an endless supply of mundane bureaucratic trivia, such as 50-year-old intelligence budget figures, as well as the occasional crime or cover-up.

Though there may be important security tradeoffs, every piece of information that remains classified reduces government accountability, and far, far too much information is classified. As it stands now, crimes committed by the government can remain undiscovered for years, locked away behind the strict, totally irrational wall of classification.

So nobody should care about the damned emails. Clinton’s misdeed should be an internal agency matter, with procedures fixed in the future. In terms of its significance to human wellbeing, the issue is just as trivial as Bernie Sanders says it is. Clinton is right about overclassification, and it’s a just a shame she only became interested in the problem when it began to threaten her personally. 

Yet now we have created a legal structure in which the mishandling of totally harmless classified information is treated akin to terrorism, unless Clinton is treated as being at serious risk of prosecution, we essentially acknowledge the nonexistence of the rule of law. There are two possibilities here: either we trust the Obama administration to treat this case like any other, in which case (given the government’s paranoia, liberal deployment of the Espionage Act, and history of other excessive prosecutions) Clinton has a massive looming liability and nominating her would be a massive gamble. Or we believe that, while the government will eagerly make mountains out of molehills for minor Naval reservists, Hillary Clinton will receive the benefit of the doubt due to the political necessity of ensuring she becomes the Democratic nominee and keeps Trump out of the White House. And that would require us to accept some very troubling conclusions about the politicized nature of the American justice system. 

To prosecute Clinton would be absurd, of course. As Ruth Marcus says, it would require a prosecutor to actively desire to press the law to its limits, rather than to apply it with reason, fairness, and good judgment. But since nobody else receives reasonable prosecutions, it’s unclear why Clinton should. If prosecuting Clinton would be absurd, it would be no more absurd than the rest of the Obama administration’s approach to the protection of classified information.

In a world where we expected the law to be equally applied to all, Democrats should be panicking right now over the status of the investigations against Clinton and the Clinton campaign’s troubling responses. The Washington Post has documented numerous misstatements and evasions made by Clinton around the emails, concluding that “it appears Clinton often used highly technical language to obscure the salient fact that her private email setup was highly unusual and flouted existing regulations.” All of this should be making Democrats panic, and sending them scrambling to find a non-indictable nominee.

But that’s not happening, for a very obvious reason. Nobody seriously believes the law would be applied to Clinton with the same pitiless irrationality as it was to Bryan Nishimura. Yet that leaves us with a stark choice: either treat the Clinton scandal as troubling and a major campaign issue, or acknowledge that we are entrusting an oligarchical justice system to make the issue go away for Clinton in a way it wouldn’t for anyone else. Neither choice should leave Democrats comfortable.

Such Miserable Times As These (March/April Edition)

Our bimonthly roundup of the Grey Lady’s wrongdoings…

The Current Affairs Book of the Good Life has the following to say on the subject of newspapers:

Reading the newspaper is an activity best avoided. Every moment spent reading the news is a moment not spent doing something far more productive, like building a sandcastle, icing a multi-layered cake, saying hello to a vicar, sampling an array of unusual cheeses, or masturbating quietly in a dark place. The illusion about reading newspapers is that it makes you smarter. In fact, the opposite is true. The reading of newspapers has a marked tendency to turn one into the sort of creature who finds primary elections interesting and thinks minor D.C. pundits are significant enough to be infuriated at.

Harsh words indeed, but difficult to dismiss coming from such a highly-esteemed source. And indeed, upon a close read of the morning papers, it is hard to escape the conclusion that the only good reason not to finally shutter and dismantle the entire creaking New York Times apparatus is that it would leave Current Affairs with some empty page space that might take effort to fill. Begone with it all, we say!

“Now you wait just a gosh-danged horse-feathered country second, Current Affairs! That’s our Paper of Record you’ve just so cavalierly dismissed. Where do you get the everloving nerve to go carelessly micturating upon our nation’s core journalistic institutions?”

Well, hypothetical respondent, we concede you may have the gist of something of a point there. It is probably wise to be able to offer evidence to support the things one says. We do not wish anyone to think that Current Affairs the sort of publication in which unreasonable things are sometimes said. Our bimonthly report on the various indefensible acts committed by the New York Times will therefore be the sausage-grinder through which our indefensible opinions are transformed into incontrovertible fact….

❖ ❖ ❖ ❖

As a gentle winter turned into a worryingly balmy February spring, The Times was in peak form. Questions of global importance were debated, such as “Could Bloomberg and His Millions Save Us From Ourselves?” (Some say yes! Some say no! Nobody, however, appears to find the question incomprehensible.) Two of the paper’s reporters spent what must have been days compiling a vast chart of Donald Trump’s Twitter insults (spoiler: he calls many people ‘losers’), a use of their time for which they were evidently paid money. The Style section attempted to run a profile of an uncooperative Henry Kissinger, who rebuffed their efforts to inquire into where he gets his suits. (“My what?” Kissinger replied, as if even he could not help but think “You’re a journalist asking a war criminal where he gets his suits?”) Marshmallowy divorcé and professional poverty-scold David Brooks admitted that “my predictions have been wrong consistently” before going to make… a batch of all-new predictions.

Oh, yes, and of course in the Weddings Section some nauseating people got married nauseatingly, with romances blooming across the whole spectrum of society from the Yale Club to the Vanderbilt Alumni Association. But the meat of a newspaper is made of its columnists, and the Times gang has been busily churning out some first-rate ordure as our multi-year Primary Season lumbers ever forward. Here is a short list of their finest recent secretions:

1. Maureen Dowd, “Here’s the Beauty of Trump.”

2. Thomas L. Friedman, “#You Ain’t No American, Bro” [hashtag in orig.]

3. David Brooks, “Donald Trump Isn’t Real”

4. Paul Krugman, “Weakened at Bernie’s” …Oh, no, Paul, no, you can’t have. You didn’t. Dear God. Look, Current Affairs has always opposed the imposition of capital punishment for heinous punning alone, but exceptions must be made. This time we will be generous and pretend we never saw it, but consider yourself duly warned, PK. (Leave aside the minor indignation one might also show at making a pun based on a 74-year-old presidential candidate’s having the same name as the titular character of a film about a dancing corpse.)

Speaking of Krugman, the Nobel Prize-winning economist also used the Times website to post a photo of a cat that looks like Donald Trump, and an image of Sesame Street’s Count to represent Ted Cruz, drawing the Times one step closer to its inevitable adoption of entirely GIF-based journalism. (And by the way, what the hell does Krugman have against Count von Count?)

Aside from engaging in flagrant acts of dopey wordplay, Krugman spent the rest of his month assisting fellow Times writers in their Herculean effort to convince the readership that Hillary Clinton is both human and worth voting for. Krugman spent some considerable hours at his keyboard denouncing suspicions about Hillary’s integrity as “carefully fomented right-wing legends,” the mere product of a “two-decade-plus smear campaign” by the late Pittsburgh newspaper baron Richard Mellon Scaife. A peculiar angle, this, to say that there’s a conspiracy to turn us all conspiratorial, but one is forced into all manner of uncomfortable contortions in attempting to exonerate something so unabashedly sleaze-ridden as the Clinton political empire.

[We might, in passing, mention that lefty reasoning for disdaining Hillary does not overlap much with the rightwing attacks. The Sanders supporters Krugman accuses of being “Fox-ifed” certainly don’t sound particularly Fox Newsy, their revulsion at Hillary emerging more from matters like: her blithe intimacy with verminous financial types (“I represented Wall Street as a senator,” plus those hundred-thousand dollar Goldman speaker-fees), her cowardly tardiness on supporting gay marriage (“The fundamental bedrock principle [is] that [marriage] exists between a man and a woman… and its primary, principal role… has been the raising and socializing of children”), her encouragement of public fear and paranoia about young criminal offenders (warning of gangs of roving juvenile “super-predators” with “no conscience, no empathy”) her intermittent tepidity on abortion (Planned Parenthood videos “disturbing”; abortion a “tragic” choice that should be avoided by encouraging teen girls to embrace “moral and religious values”), her role in sanctioning an invasion that resulted in the extinction of tens of thousands of Iraqi preschoolers, her subsequent vigorous defense of that role even after the whole thing turned calamitous (“No, I don’t regret giving the president authority…” ), her support for kicking people of welfare (so they are “no longer deadbeats”), and her audacious insistence that taking these benefits was to help poor people’s self-esteem (they have made the “transition from dependency to dignity”). However, if each of these is a Carefully Fomented Right-Wing Legend, Current Affairs will stand humbly corrected.]

Elsewhere in the paper, other valiant and amusing attempts to assist the tottering Clinton campaign were made. Mealy, globetrotting, sanctimony-dispensing sweatshop-lover Nicholas Kristof opined on Twitter that: “[o]ne sign of Clinton’s greater knowledge of foreign affairs [is that s]he pronounces “Iran” correctly, while Sanders speaks about Eye-ran.” It’s certainly telling of Mr. Kristof’s social class that he draws that kind of inference from that kind of evidence. Does he also think people should pronounce the word “France” with a French accent?

Lesser lights at the paper pitched in, too. Reliable political stenographer Amy Chozick reported that Clinton has newly “become a spunkier, warmer candidate” in recent days. (This fresh warm spunk was manifested in several acts of Completely Genuine Relatability, including Tweeting to Hispanic people that she felt like she was an abuela to all of them, and a misguided stunt in which she “turned control over her Snapchat account to Bill Clinton for a day”—one would have imagined a core duty of Clinton staffers consists in keeping Bill as far away as possible from the official campaign Snapchat account.)

The old class bigotries were in full blossom, too. Senior Economics Correspondent Neil Irwin displayed a photo of some Bernie supporters out in the DC snow, only to mock those who “care enough to march on a cold day in Logan Circle, [but] not enough to go to Iowa/NH.” One might have thought Mr. Irwin’s economic corresponding would have exposed him to the concept of “having a full-time job,” but evidently such an expectation underestimates the distance between the Times writership and the class of person who somehow finds herself unable to suddenly take a lengthy Iowa sojourn at her convenience.

The statisticians got in on the act, with Nick Confessore delicately fiddling some numbers in an attempt to smugly prove that Sanders, rather than Clinton, was the true beneficiary of our post-Citizens United Super PAC hell.

Finally, there was the paper’s own endorsement of Clinton, which carried the expected spirit of anemia and defensiveness, recycling most of its Clinton endorsement from 2008 with the word “experience” deployed several hundred times in rapid succession. (Quick point on the concept of experience-as-virtue: purely theoretically speaking, what if one’s experience is the experience of being a massive blundering screw-up? What if, for the sake of argument, one’s experiences were mostly a long string of whoops-a-daisies, say by accidentally decimating a series of countries through catastrophically ill-advised military interventions? Just, well, hypothetically.)

It would be inaccurate to say, however, that every single word in the New York Times was dedicated to either the bolstering of the Hillary Clinton campaign or the stroking of liberal cultural prejudices. Occasional other material finds its way into the paper. For example, in an item incomprehensibly flied under the heading of “news analysis,” vowely film critic A.O. Scott wrote a rousing defense of his profession entitled “Everybody’s a Critic. And That’s How It Should Be.” Ao says that, while we may think of critics as as a vermicular, parasitic ooze slowly devouring the last minuscule residuum of our collective cultural inheritance, in reality they are so much more. For to be a critic, says Ao, is to be “a defender of the life of art and a champion of the art of living.” Pretty stirring stuff, though one suspects this may all just be something Mr. Scott desperately tells himself as he sits down to review Ride Along 2. (In fact, he’s publishing a book-length expansion of this strained effort to justify his career, entitled Better Living Trough Criticism. Someone please let Ao know that he doesn’t have to do this for a living if he doesn’t want to. Side-inquiry: is it common for a film critic’s midlife crisis to take the form of a book on the social value of film criticism? Does not seem implausible that this may be a well-known phase in the lives of reviewers.)

Finally, the Times made two attempts to redeem despised cultural objects:

1. Phil Collins (“Does Anybody Still Loathe Phil Collins” Jan. 29, 2015)

2. Turtlenecks (“Can Turtlenecks Be Cool Again?” Dec. 30, 2015) For the benefit of readers, the answers to this little quiz are “yes” and “no,” respectively.

Our Times report would not be complete, however, if we did not note the good along with the bad. There were some redeeming aspects of the paper’s work. They did a good David Bowie obituary (we presume), and the brilliant writer Vinson Cunningham wrote a characteristically brilliant thing. We are capable of being positive, then. We do not, like certain Times film critics, believe the route to the good life is through exercising the curmudgeonly passions. Tis report has not been drafted for our own idle pleasure, but is offered as a public service. It is the least we can do.