The subtlest feat of modern trolling ended in June 2015, when, as so often happens in America, it was taken all the way to the Supreme Court. For enthusiasts, one gratifying form of trolling involves the simple repetition of a deliberate misunderstanding. Think of it as a reverse con, where the mark is all too aware of what’s going on as the pranksters feign a Who, me? naïveté. In this case, the crew of rogues was the federal judiciary, and the livid sucker was the late Supreme Court Justice Antonin Scalia.
The prank was subtle enough that only law professors and beat reporters really had the pleasure. Like any arcane joke, it required a good bit of in-group background to understand. The setup, however, was vaguely familiar to most Americans: the recent but shifting rulings that led to an embrace of same-sex marriage in 2015 as the newest manifestation of American liberty. The key signpost on that road dates back to 2003, when the court held in Lawrence v. Texas that criminalizing homosexual sex was wrong.
Not long after September 11, 2001, the Bush administration began to develop plans for a prison at the Guantánamo Bay Naval Station, in Cuba. Though modeled physically on maximum-security prisons in the United States, this facility—with a maximum capacity of 1,100 inmates—would not hold convicted criminals. In fact, most of the inmates at this prison would never be charged with a crime, let alone convicted.
On June 9, 2002, an American citizen named José Padilla disappeared into a legal black hole. The government says he is a dangerous terrorist, but they have never charged him with a crime. For the nearly two years since he was arrested at Chicago O'Hare Airport, Mr. Padilla has been held without trial in solitary confinement in a military brig.
We like to think of the law as providing the comfort of fairness and certainty. This is a story about the uncomfortable way law is made in America and the resulting elusiveness of certainty and fairness in our law. The course this particular issue has taken through the legal system is, in microcosm, the story of the way our law works: haphazard, hesitant, meandering, often unfair, and out of the control of any individual or government body—from the Congress of the United States to the Supreme Court of the United States—fully to direct. The series of events leading to the Supreme Court decision was set in motion, unintentionally, by a prisoner, a store manager, a police officer, a corrections officer, a paraplegic seeking a driver's licence, a nurse, a security guard, and half a dozen other individuals, all unknown to each other and living in different parts of the country. Once launched, the legal controversy followed its own winding course of unexpected turns and twists. The Supreme Court tried to settle the matter twice before, only to be thwarted in its endeavor by the policeman and the corrections officer: a couple of average citizens following their own interests rather than the grand design of the law.
Whenever I see sheets drying on the line or smell gumbo simmering on the stove, a flood of memories comes to me. In 1953 when I traveled in the rural South with a group of students, we received the generosity of strangers—African Americans who took us in when there were no places for nonwhites to eat or sleep.
I have chosen to begin my first issue as editor of the Virginia Quarterly Review with a special portfolio of work on a subject dear to my predecessor: integrated education. Staige D. Blackford first made a name for himself in March 1952 when, as a gr [...]
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