The Curious Rise of a Supreme Court Doctrine That Threatens Biden’s Agenda

The “major questions doctrine,” promoted by conservative commentators, is of recent vintage but has enormous power and may doom student loan relief and other programs.

the sovereignty of mercy

In his sixth-and-lastly LOTR post, Adam Roberts graciously responds to my recent attempts to correct his errors, and this leads him into some fascinating territory, e.g. “the lack, or apparent lack, of the death penalty in Middle Earth.” 

I can think of two examples in LOTR of a death penalty having been decreed, and they come close together: those who wander in Ithilien without the permission of the Lord Steward of Gondor, and those who come to Henneth Annûn, the Forbidden Pool, are alike to be killed. Yet Faramir overrides both decrees, in the full knowledge that his decisions, if his father hears about them, could cost him his own life. What underlies those decisions he explains to Sam, when the young hobbit rashly challenges Faramir’s treatment of Frodo: 

‘Patience!’ said Faramir, but without anger. ‘Do not speak before your master, whose wit is greater than yours. And I do not need any to teach me of our peril. Even so, I spare a brief time, in order to judge justly in a hard matter. Were I as hasty as you, I might have slain you long ago. For I am commanded to slay all whom I find in this land without the leave of the Lord of Gondor. But I do not slay man or beast needlessly, and not gladly even when it is needed. Neither do I talk in vain. So be comforted. Sit by your master, and be silent!’  

That is, Faramir has internalized the very standards that, as Adam notes, Gandalf articulates in the second chapter of the whole novel, “The Shadow of the Past”: the sovereignty (among moral imperatives) of pity and mercy. Gandalf on Bilbo: “It was Pity that stayed his hand. Pity, and Mercy: not to strike without need.” Faramir is indeed what his father accuses him of being: “a wizard’s pupil.” 

“Sovereignty” is a key concept here, as Carl Schmitt realized when he said that the sovereign is whoever or whatever can “declare the state of exception.” Faramir assumes a local sovereignty when he overrides the death penalty in these two cases — as, by the way, do Eomer (when he allows Aragorn, Gimli, and Legolas to ride free in the Mark rather than bring them back to Theoden) and Háma, the doorward of Theoden, whose charge is to deprive visitors of their weapons:  

‘The staff in the hand of a wizard may be more than a prop for age,’ said Háma. He looked hard at the ash-staff on which Gandalf leaned. ‘Yet in doubt a man of worth will trust to his own wisdom. I believe you are friends and folk worthy of honour, who have no evil purpose. You may go in.’ 

So you can see that one of the great themes in the middle two books of the novel is the necessity of wisdom — of prudential judgment that overrides the letter of the law. In the Nicomachean Ethics Aristotle says that any law is necessarily deficient because of its generality, so wise rulers will need to develop the virtue of ἐπιείκεια (epieikeia), a word impossible to translate: in many contexts it means clemency, gentleness, or, yes, mercy, but Aristotle seems to mean something broader: perhaps discretion is the best one-word translation. But discretion will typically, for Aristotle, involve relaxing or modulating the demands of the law. In any case, again and again in LOTR the success of our heroes depends on their encountering people in power who manifest such ἐπιείκεια. 

But what is the origin of the laws they they thus relax? It seems that in every case they arise from personal decrees by rulers. (Denethor speaks and it is so.) Because the Shire doesn’t have a ruler, the hobbits who live there seem to depend not on law at all but rather custom. The law in any sense recognizable to us — an entity like the Code of Hammurabi or the Mosaic law — doesn’t appear to exist in Middle-Earth. 

And I wonder if this absence of Law-as-such is related to the (oft-noted) absence of Religion-as-such. Our word religion comes from the Latin religio which in turn probably comes from religare, to bind. To be “religious” is to bind oneself to certain beliefs and practices. But in this context to bind is a reverberant notion: we may well think of the One Ring as the One Religion and One Law of Middle-Earth in the Third Age. It is noteworthy that most of the various decrees which good men exercise their ἐπιείκεια to relax were created in response to the increasing power and ambition of Mordor. Those who act wisely in this book seem to be aware, perhaps not quite consciously, that decrees made in order to respond to Mordor will likely be tainted by Mordor’s logic of power. Eomer and Háma and especially Faramir seem to intuit another logic, a greater logic of ἐπιείκεια that comes not from the decrees of the sovereign but rather … well, from where? 

When I teach The Lord of the Rings I take my students through the book’s oddly pervasive use, in certain circumstances, of the passive voice. Gandalf  tells Frodo that he and Bilbo were meant to find the Ring; Frodo asks, “Why was I chosen?” — by whom, we wonder; Elrond tells the council gathered at Rivendell that they were called there (“though I did not call you.”) There are many more examples. Says Gandalf, “Behind that” — Bilbo’s finding of the Ring — “there was something else at work, beyond any design of the Ring-maker.” But what? No one seems to know, though perhaps Gandalf does know and is reluctant (or forbidden) to say. But whatever it is, it seems to whisper of the sovereignty of mercy above that of legal decree. It shows us a world in which penalties of death are declared, but are then abrogated by the wise and kind. A world in which Schmitt’s “state of exception” is indeed instituted, but not by the power-hungry — rather, by the merciful, no matter what it costs them. 

How to Survive Hopelessness

“You can expect good and bad luck, but good or bad judgment is your prerogative.”

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Dougal Robertson (January 29, 1924–September 22, 1991) was still a teenager, the youngest of a Scottish music teacher’s eight children, when he joined the British Merchant Navy. After a Japanese attack on a steamship during WWII killed his wife and young son, he left the navy and moved to Hong Kong, where he eventually met and married a nurse.

Together, they began a new life as dairy farmers in the English countryside, on a farm without electricity or running water. Eventually, they had a daughter, then a son, then a pair of twins.

After nearly two decades on the farm, the family had an unorthodox idea for how to best educate their children, how to show them what a vast and wondrous place the world is, full of all kinds of different people and all kinds of different ways of living: They sold everything they had, bought a schooner, and set out to sail around the world, departing on January 27, 1971.

After more than a year at sea, just after sailing through the Panama Canal to begin their Pacific crossing, killer whales attacked the schooner 200 miles off the coast of Galapagos, sinking it in less than a minute. They piled into the inflatable life-raft, managed to grab a piece of sail from the water, and rigged it to the 9-foot dinghy they had on board to use it as a tugboat for the raft now housing six human beings.

Suddenly, they were a tiny speck in Earth’s largest ocean, enveloped by the vast open emptiness of infinite horizons. With no nautical instruments or charts, powered only by their makeshift sail, they had no hope of reaching land. Their only chance was rescue by a passing vessel. Given the immensity of the Pacific Ocean, it was an improbability bordering on a miracle.

Seventeen days into their life as castaways, the raft deflated. All they had now was the narrow fiberglass dinghy, its rim barely above the water’s edge with all the human cargo.

By that blind resilience life has of resisting non-life, they persisted, eating turtle meat and sweet flying fish that landed in the bottom of the boat, drinking rainwater and turtle blood. Storms lashed them. Whales menaced them. Thirst and hunger subsumed them. Their bodies were covered in salt-water sores. Enormous ships passed within sight, missing their cries for help. But they pressed on, hoping against hope, toiling in every conceivable way to keep the spark of life aflame.

After 37 days as castaways, chance smiled upon them — a Japanese fishing boat spotted their distress flare and came to their rescue. Their tongues were so swollen from dehydration that they could hardly thank their saviors.

Throughout it all, Dougal kept a journal in case they lived — an act itself emblematic of that touching and tenacious optimism by which they survived. He later drew on it to publish an account of the experience, then distilled his learnings in Sea Survival: A Manual (public library).

Nested amid the rigorously practical advice is a poetic sentiment that applies not only to survival at sea but to life itself — a soulful prescription for what it takes to live through those most trying periods when you feel like a castaway from life, beyond the reach of salvation, depleted of hope.

He writes:

I have no words to offer which may comfort the reader who is also a castaway, except that rescue may come at any time but not necessarily when you expect it; and that even if you give up hope, you must never give up trying, for, as the result of your efforts, hope may well return and with justification.

Echoing Einstein’s views on free will and personal responsibility, he adds:

You can expect good and bad luck, but good or bad judgment is your prerogative, as is good or bad management.

This simple advice reads like a Zen koan, to be rolled around the palate of the mind, releasing richer and richer meaning, deeper and deeper assurance each time.

Complement with John Steinbeck on the true meaning and purpose of hope, Jane Goodall on its deepest wellspring, and some thoughts on hope and the remedy for despair from Nick Cave and Gabriel Marcel, then zoom out to the civilizational scale and revisit Road to Survival — that wonderful packet of wisdom on resilience from the forgotten visionary who shaped the modern environmental movement.

Thanks, Nina

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For a decade and half, I have been spending hundreds of hours and thousands of dollars each month composing The Marginalian (which bore the unbearable name Brain Pickings for its first fifteen years). It has remained free and ad-free and alive thanks to patronage from readers. I have no staff, no interns, no assistant — a thoroughly one-woman labor of love that is also my life and my livelihood. If this labor makes your own life more livable in any way, please consider lending a helping hand with a donation. Your support makes all the difference.

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Penn State’s Denise Okafor Wins the Mason Award for Women in the Chemical Sciences

C. Denise Okafor, assistant professor of biochemistry and molecular biology and of chemistry at Pennsylvania State University has been selected as a recipient of the 2023 Marion Milligan Mason Award for Women in the Chemical Sciences from the American Association for the Advancement of Science.

The Mason Award commemorates the late chemist Marion Tuttle Milligan Mason, who wanted to support the advancement of women in the chemical sciences. The Mason Award is a highly competitive award that attracts applications from the very best early-career female chemists across the country. First awarded in 2015, the Mason Award has funded the research of 18 scientists who represent a diverse range of specialties within the chemical sciences.

Dr. Okafor’s research combines computational and experimental investigations to develop a fundamental understanding of how protein function is regulated. She investigates the structural mechanisms of signaling and regulation in protein complexes and uses simulations to determine how conformational dynamics of proteins are altered in different functional states.

Prior to joining the faculty at Penn State in 2020, Dr. Okafor was a postdoctoral researcher at the Emory University School of Medicine in Atlanta from 2015 to 2019.

Dr. Okafor earned a bachelor’s degree in biomedical chemistry at Oral Roberts University in Tulsa, Oklahoma. She holds a master’s degree in chemistry and a Ph.D. in biochemistry from the Georgia Institute of Technology.

The Road to a Supreme Court Clerkship Starts at Three Ivy League Colleges

The chances of obtaining a coveted clerkship, a new study found, increase sharply with undergraduate degrees from Harvard, Yale or Princeton.