Law and Time

Sian Beynon-Jones, Emily Grabham, Sian Beynon-Jones, Emily Grabham

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351683746
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Research on law's relationship with time has flourished over the past decade. This edited collection aims to put law and time scholarship into wider context, advancing conversations on time and temporalities between socio-legal scholars, anthropologists, sociologists, geographers and historians. Through a diverse range of contributions, the collection explores how legal modalities of time emerge and have effects within wider clusters of social and political action. Themes include: law's diverse roles in maintaining linear historicist models of time; law's participation in the materialisation of times; and the unsteady effects of temporal pluralism and polytemporalities in law. De-naturalising the 'time' in law and time scholarship, this collection positions time as something that can be enacted and materialised as well as experienced, with distinct implications for questions of social justice.

The Introduction and Chapter 6 of this book are freely available as downloadable Open Access PDFs at http://www.taylorfrancis.com under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 4.0 license.

1 The long sudden death of Antonin Scalia

Carol J. Greenhouse, Princeton University

The double theme of time and regulation is both inviting and challenging. It is inviting, in recalling the implication of shared time in Emile Durkheim’s idea of social time (Durkheim, 2012, 10–11). It is challenging, too, since shared time raises the question of whether it is shared equally. Once we think of time as social rather than natural, it precludes neither claims of ownership nor asymmetries of distribution. Social time belongs to politics before it belongs to nature, and there are potentially high stakes in understanding it as “a true social institution” (Durkheim, id., 11, n. 6) in which issues of power and inequality are as relevant as in any other institutional context. Political authority works power not just in time, but as time – in the process remixing the subjects and objects of regulation. This volume’s concerns with regulating time are thus particularly relevant – urgent even – to understanding certain forms of political crisis in democratic states. In this chapter, the remixing involves the United States Supreme Court, President Obama, and the Republican caucus in the U.S. Congress.

For Durkheim, the visibility of the social in law (in Division of Labor in Society) and in time (in Elementary Forms) are two sides of the same question, as to how a society sustains its own collectivity as necessary and sufficient to its ethical credibility. That question points to various kinds of risk that are easily overlooked. But, in fact, anyone’s assurance that the times are on their side might be misplaced, to their peril. Miscalculation is always a risk, for at least two reasons. First of all, social time is never sole or total (by Durkheim’s definition, social time is concerned with difference across what he calls civilizations), but it functions as if it were. That as if is not the work of time, but rather the solidarity for which social time is a contingent expression or sign. Second, for this very reason, in times of political or social crisis – as I suggest below – social time can be seriously off. Theorizing the materiality of what she calls “legal times”, Emily Grabham proposes that:

Human action does not exist within time, but instead generates temporalities, including legal temporalities, in specific assemblages of other human and nonhuman actors … I ask what our understanding of law and time might look like if we followed things as well as people, if we allowed objects to open access to new worlds, and if we paid attention to the agentic potential of, for example, matter, metals, and particles, and not merely conscious human behaviour.

(Grabham, 2017, 6)

Grabham’s question is suggestive, since it pushes us to be agnostic about what represents what in the regulatory apparatus of time – and, more fundamentally, to consider agency ahead of representation. This is a constructive provocation to suspend the commonplace assumption that social time is itself wholly temporal, a proxy for whatever real time is (or is imagined to be).¹ That provocation quickly runs up against, and corrects, a reception tradition that conflates time and social time. That tradition is widespread, in spite of Durkheim’s explanation that social time is not “my” time, or some natural time. That distinction tends to be lost, for example, in anthropological readings that render social time in either managerial terms, ahead of social activity (coordinating it), or semiotic terms, following social activity (representing it).² Under the logic of such readings, social time can never be off. It is always the right time, by definition – its continuous recursivity assured in time and on time.

Thinking about the transitive materiality of law and time unsettles that assurance, since time (like material objects) can be designed and built, consumed or unexpectedly moved, delivered late, broken, appropriated by others or made subject to contested ownership claims, or go missing altogether. Grabham’s key image is “brewing” – referring to a percolation of ingredients that produces a new substance. Holding onto such material imagery enables us to consider that social time is not first and foremost (or somehow automatically) a technology for time-keeping or representing. Rather, it sets the limiting conditions of agency – different limits in different circumstances, including but not limited to different temporal orthodoxies.³

These reflections are prologue to what follows. I begin with a case study of sorts – based on a recent and ongoing story from the front pages of the U.S. newspapers. It is in some ways about a material object – the seat on the United States Supreme Court bench that was (and remains) vacated unexpectedly with the sudden death of Justice Antonin Scalia. But the very materiality of the seat, its arrangement of planes, conjures its composition of social surfaces as social time – i.e., the interrelations of the late Justice, the Court, and beyond. Social time is in question, as events unfolded around a concerted partisan political effort to reset the times – a tactical reset that would clear the seat’s title, so to speak, and secure it for the future.⁴ The extremity of that tactic sets the theme for the second part of the chapter – an engagement with interpretive resources from three classic social theory texts, selected for their explicit address to problems of succession. The third part of the chapter returns to the problem of shared time in relation to contemporary states in the throes of democratic crisis.

I

Antonin Scalia, Senior Associate Justice of the United States Supreme Court, died unexpectedly while on a hunting vacation with a group of 35 friends at a west Texas ranch resort, sometime in the night of February 12–13, 2016.⁵ He was 79. Cibolo Creek Ranch – some 30,000 acres in a remote area south of Marfa, TX – is a private luxury resort. The remoteness made for some complications of a heartbreakingly practical sort. The coroner – many miles away – certified his death by natural causes by telephone, as allowed by Texas law (Moravec, Horwitz, and Markon, 2016; see also Martin and Contreras, 2016), and the public announcement was delayed (ultimately made by Chief Justice John Roberts on February 13). There was some initial uncertainty and a brief ugly tussle over who should have custody of the body (the county sheriff or federal officials). I will skip those details. In the end, a team of U.S. Marshals and Supreme Court Police escorted his body back to Washington, D.C., on Sunday morning, February 14.

Within hours of the death, and well before the body arrived in Washington, Senator Mitch McConnell (R-KY), majority leader of the U.S. Senate, made a public statement of his view that Justice Scalia’s successor should be named by President Obama’s successor, and that it would be wrong to do otherwise (Landler and Baker, 2016) – posting to his Facebook page: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President” (McConnell, 2016).

Developments in the course of the day quickly confirmed that this was not just McConnell’s view, as Senate Republicans and most Republican candidates for the presidency declared their blanket opposition to whomever the president might nominate. But their pledge was not just opposition to the eventual nominee. The Republican position coalesced around a lockstep refusal to hold hearings on the nominee, or even to receive him or her in the round of courtesy calls that is customary in the lead-up to Senate Judiciary Committee hearings. Weekend news reporters struggled to keep to their own commemorative conventions, Scalia’s smiling portrait the backdrop on every channel, as the political story unwound.

Scalia’s death came a full nine months before the election and 11 months until the next inauguration in January, 2017 – an unprecedently long vacancy, if Republicans did not yield. In response to McConnell’s statement, Harry Reid (D-NV), minority leader of the Senate, said: “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities” (Landler and Baker, 2016). Republicans tried to resist the “unprecedented” part – claiming that it would be highly unusual for a Supreme Court confirmation to occur in the last year of a presidential administration. Statistically, they might have been correct, since most vacancies on the Court occur as planned retirements, and the odds of a justice dying in office in the last year of a presidency are mathematically slim.⁶ But Harry Reid was correct on the substance. Justice Kennedy was confirmed in the final year of the George H.W. Bush presidency in 1988, and, in any case, the Republicans were not talking about rejecting the president’s nominee; rather, they were refusing to acknowledge the president’s – this president’s – authority to make the nomination. This was indeed unprecedented (Liptak, 2016b; Kar and Mazzone, 2016; New York Times, 2016). Meanwhile, President Obama confirmed his intention to proceed (Landler, 2016). All of this happened before Scalia’s body was back in Washington.

Shock was an objective response to these events, in my view. But, for the sake of argument, I grant that there is a case to be made otherwise, as partisan antagonism was already shocking in the Congress and between the legislative and executive branches. Mitch McConnell had long since pledged his commitment to making the Obama administration a failed presidency (on the occasion of Obama’s first inauguration in 2008),⁷ and for eight years led an obstructionist Republican caucus (as Senate Majority Leader since 2015). Moreover, within their own circles, conservatives had staked out something like this strategy long before Justice Scalia died, touting the virtues of leaving a seat open for a term “or two” for the sake of preserving a conservative majority on the Court.⁸ But even the commentators who took that position did not go so far as to challenge outright a president’s authority to make a nomination. Especially now that shock has become routine in the U.S. political environment, it may be difficult for readers to recapture the lurching sense of being on new ground as the Republicans’ policy of obstruction against President Obama reached this new pitch. But a sense of shock is analytically useful, even if it is not an emotion all readers share.

Indeed, it was more than the obstruction or the “don’t give an inch” partisanship that was unsettling in this instance. It was the Senate’s preemption of executive authority and the subordination of the Supreme Court’s constitutional authority to be a national court – something like a floor giving way under the most fundamental tenets of the separation of powers in the U.S.⁹ The Republicans were almost casual in their explicit disregard for President Obama’s legitimacy as president. It was that delegitimation that weaponized their tactic, while concealing it in populist wraps.¹⁰

As might be clear already, I believe the Republican efforts to normalize the state of affairs as fulfilling a democratic imperative are not credible; their particular targeting of President Obama and the claimed erasure of his mandate gives this away. It was Senator Grassley (R-IA), chair of the Senate Judiciary Committee, who got to the heart of that matter, expressing the view that the 2014 midterm elections, which had returned a Republican majority to the Congress, had effectively overturned President Obama’s reelection in 2012: “Peo...