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Stitching a Different Supreme Court Nine (concluded)

We have been speculating on ways to make a less political Supreme Court and have focused on a proposal in which the president could nominate a new Supreme Court Justice every two years. This, of course, would mean that the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine Justices at random, there is another possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Reserve judges would be available whenever one of the regular nine was unavailable for whatever reason such as illness or a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are also major leaguers and remain on the team. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for about thirty years; Chief Justice Roberts and Samuel Alito have been on the Court for over fifteen years and are expected to serve for another decade or more.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.

The partisan games in which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett should end. Such maneuvers that strengthen the notion that the Court is not a neutral body should lessen. Similarly, the recent situation calling for the resignation of Justice Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it gave Biden two appointments in the next four years. Instead, it should start after the next presidential election with the newly-elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

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Stitching a Different Supreme Court Nine

This blissful time when the Supreme Court is not rendering decisions is an opportunity to think about the Court’s structure. Proposals to enlarge the Court have been met with claims of a “coup” to destroy the judiciary and a plot to harm “our democracy.” The Supreme Court is an important American institution. It is, however, one of our least democratic ones.

The Supreme Court, of course, is not an elected body. They are appointed by a president (who was elected) and confirmed by a Senate (also an elected body), but once in office, they are not answerable to “the people.” Unlike other appointed officials, they are not subject to removal if administrations or Senate composition change. Justices may sit for thirty or more years and make decisions for decades after the officials who appointed and confirmed them have left office. Their rulings affect Americans who were not even eligible to vote for the president and the senators who appointed and confirmed them. In short, the Supreme Court is not a democratic body. Indeed, in finding enacted laws unconstitutional, it is often acting anti-democratically.

Furthermore, many do not see the Supreme Court as a neutral, thoughtful legal body, but a political one. Such a notion finds traction any time a presidential candidate pledges to appoint Justices not just for their legal acumen or wisdom but also for their perceived views.

The Supreme Court is an important institution but not a perfect one, and perhaps it can be made even better. What is clear, however, is that a change in its size and the timing of who will be on the Court will not destroy or harm democracy. And Justices with life tenure will still have independence.

The Constitution does not define the number of Supreme Court Justices. It merely says: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed ever since. That number has seemed sacrosanct since FDR’s failed attempt to expand the Court in 1937.

The Court in the 1930s had found many pieces of New Deal legislation unconstitutional. As Jeff Shesol reports in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), the Supreme Court between 1933 and 1936 overturned congressional acts at ten times the historic rate, often using long neglected doctrines and breathing new life into obscure Constitutional clauses to do so. Roosevelt then sought an expansion of the Court. Although Roosevelt gave varying nonpolitical reasons for his plan (What a shock! A politician being disingenuous!), the assumption was that he wanted more Justices so that he could appoint sympathetic people, who would uphold legislation passed by Congress and signed by the president. Or as one might put it, accept democratically enacted laws.

Roosevelt’s proposal was soundly defeated after much rhetoric about his threat to our constitutional government. While FDR’s plan failed by a resounding vote, ultimately he was the winner, and the Supreme Court and conservatives the losers. Here’s why. Soon after the proposal to enlarge the Court was presented, the Court began to uphold New Deal legislation with logic inconsistent with its previous holdings. To many the Court seemed to be bending to political winds, and the perception of it as a partisan institution increased. The proposal to enlarge the Supreme Court did not put Roosevelt in a good light. However, it also put the Court in a­ bad light when its questionable constitutional interpretations of the early 1930s became recognized as the overreach of biased judges reacting to legislation they did not favor.

Any suggestion since then to expand the Court has met with outcries that our constitutional way of life will be overthrown. Adding Justices only seems to be a partisan power play and not something that could improve justice, the Court, or the perception of the Court.

Current Court decisions, however, as has been true for much of our history, are seen not as neutral constitutional and statutory rulings but as the imposition of personal, political, and increasingly religious views of the judges and those who placed them on the bench. We can’t remove politics from Supreme Court decisions. On some level, all government decisions are political, and the Court is not immune. Writing about a famous case, legal scholar Fred Rodell said, “Both the plaudits and the deference, like the decision itself, and like every significant Supreme Court decision since, were and are rooted in politics, not in law. This only the ignorant would deny and only the naïve deplore.” This may be so, but that does not mean that we should just throw up our hands and accept an overly partisan Court. Instead, in examining proposals for reforming the Supreme Court, we should be seeking ways to make it look, and perhaps be, less politically biased and more politically neutral.

Merely expanding the Court is not a particularly good solution. If Democrats added more Justices, Republicans would be urged to do something comparable when they have the opportunity. Other proposals, however, offer institutional changes in the timing of Supreme Court nominations that, even though they would lead to a larger body, could make the Court appear, and perhaps be, less partisan. I have not studied them all, but one plan has intrigued me. This is not my own plan. I read this proposal, or one much like it…somewhere. I have searched for it, but so far have not found it again. I apologize for not giving proper credit to its initiator.

Here is the idea behind the proposal: Each president gets to appoint one Supreme Court Justice every two years, starting perhaps on the July 1 after the presidential term begins. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy. For a given case, nine Justices would be picked at random from all the Supreme Court judges. Many courts already operate this way. Intermediate appellate courts, such as the federal Courts of Appeals, have panels of three judges deciding a case but have more than that number sitting on that court. From the larger panel of judges, the requisite number are selected to resolve a case. For example, the Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. The court can, therefore, take on more cases and decide them more quickly. Similarly, a Supreme Court that had more than nine judges could consider more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept for review fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the final result in a litigation. This could give more certainty, uniformity, and finality to the law.

This would also dampen lawyerly gamesmanship. Deadlines are in place to seek Supreme Court review. If they are not met, the lower court decision becomes final. So, for example, if a party has been ordered to pay $1million or to serve a twenty-year sentence, the money must be paid or the imprisonment served if the petition for Supreme Court review is not timely filed. The litigant cannot wait for a change in Court Justices hoping that they will receive a more favorable chance in front of a newly-constituted Supreme Court.

Unlike individuals, some institutions can delay Supreme Court review until the time seems propitious. For example, assume the government has lost a tax case concerning some new scheme to avoid taxes. Government attorneys may believe that if they get immediate Supreme Court review, they will lose the case before the existing Supreme Court thereby allowing a precedent to be set that allows the scheme to be used by other taxpayers indefinitely. Instead, the government may decide not to seek review in hopes that the makeup of a future Court may be more amenable to its contentions. It may be better for the government to let that individual taxpayer keep the contested moneys to avoid a bad precedent and instead seek review with some other future taxpayer when the Court makeup is different. The government can take the longer view than an individual litigant.

Other institutional groups also try to time Supreme Court review. These institutions represent a cause more than an individual client. Prime examples are the NAACP or the ACLU, but this list now includes a host of conservative organizations as well. These advocacy groups often seek judicial review only when they assess the Supreme Court lineup as favorable to their position. We can expect to see that gamesmanship being played repeatedly in the coming years. With Barrett’s ascension to the Court, conservative legal organization see a solid majority favoring certain kinds of religious claims and Second Amendment expansion, and they will now seek to get Supreme Court review of cases containing such issues.

Such gamesmanship only furthers the notion that it is not truly the Constitution or the law that determines an issue, but the personal predilections of the Justices. The intrinsic merits of a legal argument may stay the same, but the likelihood of an outcome can vary depending on the timing of Supreme Court review.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more focus on the issues and less on the judges.

There is also another option if we had a new Justice every two years, and we had a Supreme Court larger than nine. It is the one I find most interesting.

(concluded July 25)

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Snippets

I have friends who are Australian. I blame them partially for the decline of America, or at least its music. Australia gave us the BeeGees.

Right after crossing the finish line of the 13.1-mile foot race, the man collapsed and died. I wondered if running a half-marathon was the last thing on his bucket list.

I was going to borrow one from a friend, but he suggested that I might find it useful to have my own. Normally buying a power tool seems manly, but purchasing a trickle charger sounds only old manly.

Fawns wander into our yard with the mother nearby. Cute. But I wonder whether it is called venison veal.

Ivana Trump, the wife who preceded Marla Maples, died, the medical examiner said, from blunt trauma injuries, apparently by tumbling down stairs. The death was ruled “accidental.” As a result, Donald Trump along with Ivanka and Donald, Jr., who have mightily resisted testifying, did not have their scheduled, under-oath depositions. Hmmmm.

I came across a legal prediction I made in May 2017, which has been all too accurate: “In the next few years, the Supreme Court will expand First Amendment free exercise of religion rights and essentially ignore that Amendment’s establishment of religion clause. Religious organizations will more easily get state moneys, and less state money will be available for non-religious organizations. And people and organizations claiming religious rights will be able to discriminate more readily.”

A wise person said: “Real patriotism is the sort that understands that this is a nation and not a denomination.”

Another legal prediction: In the next few years, the Supreme Court will expand First Amendment free speech rights. The overwhelming beneficiaries of these decisions will be corporations and conservative entities.

“People of the same trade seldom meet together but the conversation ends in a conspiracy against the public, or in some diversion to raise prices.” Adam Smith.

I have been trying to understand probabilities better yet again and thinking about some famous problems that once stumped me such as what are the odds that two people share a birthday in a group of people. And, of course, the famous Monty Hall problem. He was the host and co-creator of “Let’s Make a Deal.” At the end of his show, a contestant was offered a wonderful prize and two clinkers. They were hidden behind three doors. The contestant would pick a door. Hall, who knew what was behind each door, did not immediately open the selected door but would instead first open one of the two remaining doors to expose a booby prize. Contestants would then be allowed to keep their selected door or switch to the remaining door. Should the contestant switch? I remember reading Marilyn vos Savant’s column in Parade magazine where she maintained that the contestant’s odds of winning the big prize were two-thirds if the contestant changed the pick to the unselected door. The column caused a storm with many people, some highly educated, saying the odds were 50-50 no matter what the contestant did. But, of course, vos Savant was right.

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The Enduring Peter Brook

I never met him. I don’t think I ever even saw him, but Peter Brook, who died earlier this month at the age of 97, influenced my life.

I did not go to live theater growing up…unless a high school production of Our Town counts. Perhaps there were other forgotten school shows. Did the town have a community theater? I don’t remember it. But there was no professional theater, and our family was not the sort of family that would go to the larger city to see any.

In college, however, I took a course in modern drama. We saw a few classic movies—I remember M and Treasure of the Sierra Madre–but mostly we read plays. I found almost every one of them interesting, and I still remember many of them. On the other hand, I don’t remember any specific lecture by Alan Downer, the professor. They must have been informative, however, for I feel as though I have a fairly solid grasp of the development of modern drama, and that had to come from him.

There was a professional theater associated with the university, and I remember seeing Hedda Gabler, and I probably saw other productions, and I do remember seeing a roommate in a student presentation of Mother Courage. Playgoing, however, was akin to hearing the Modern Jazz Quartet, going to a ballet, or attending a fencing match; I had not experienced these things growing up, and I wanted to. I certainly had not yet learned the real power of the stage.

That changed soon after I moved to New York, and it came about because of Peter Brook. I was lucky enough to attend his now legendary Royal Shakespeare Company production of A Midsummer Night’s Dream at the Brooklyn Academy of Music. I learned that night that a script can be read, but that a play must be seen. This was not Shakespeare of the drab printed word, but the creation of a magical world on the stage. It drew me in. It was more immediate than any movie could ever be. It required live actors, a stage, and an audience. And a special director who used a nearly bare stage, trapezes, unexpectedly outrageous costume, twirly thingies that glowed in the dark and produced an ethereal sound. I laughed out loud, was moved, and learned that the theater could present an experience that could not be had anywhere else.

I have now seen a half-dozen or more of Peter Brook’s other theatrical productions, some in the last few years since The Brooklyn Academy of Music, and The Theatre for a New Audience, a block away from BAM, were his American homes. They are both mere blocks from my own home. Each production that I have seen had something of interest that could only be done with live actors on the stage.

I was lucky enough to experience another of Brook’s legendary efforts, The Mahabharata, the production that christened the opening of The Harvey Theater at BAM. In the heyday of movie palaces, the building had been one of those gilded theaters, but, like almost all of them, it had closed as TV rose to prominence. It became a bowling alley, I am told. However, I had only known it as a bricked up, decrepit building like many of its neighbors.

The Brooklyn Academy, in collaboration with Brook, decided to turn it into a live theater in the mid-1980s but not into a sleek, modern space with plush seats. Instead, Brook liked the look of decay the place had. The cracked plaster and paint-peeling walls remained. Backless, hardwood benches were installed because this was what Brook wanted for his staging of the ancient Sanskrit epic.

For some theatergoers, Peter Brook is such a powerful figure that they claim to have seen his Dream when they could not have. I think of that when I claim to have seen his Mahabharata. Those benches (subsequently replaced with human seating) were unbearable for a one-act play; the Mahabharata was a seven, or perhaps nine, or maybe even an eleven-hour play. (One could attend it over several days.) I don’t know its actual length because I did not make it to its conclusion. I am only confident that it did end because I have been to that theater many times since, and The Mahabharata is not still on the stage. The seats were uncomfortable, yes, but following the complex interaction of gods and humans was dizzying, and the spouse and I had little idea what was going on. At a break in the “action” (were there even intermissions?) the spouse and I sneaked out, forgetting that where we exited was also a place where actors gathered awaiting their entrances. As we embarrassedly slipped by them, in the days before cellphones, I nonsensically mumbled, “Babysitter problems” to explain our departure.

So I learned from Peter Brook that theater could be magical and produce an experience that could not be had elsewhere. There have been many more special moments since I started going to plays, and there have been many special productions. I now go to the theater a couple dozen times a year, and something important or magical or special does not always happen, but it happens often enough that I continue going. And I thank Peter Brook’s A Midsummer Night’s Dream for initiating me into the joys of the theater.

But I also learned from Peter Brook that theater sometimes comes with uncomfortable seats and puzzling plots. Then, you just have to get up and go home.

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One Run Baseball Luck?

My favorite baseball team has won a lot of close games this year, and that has been a key component in what so far has been an outstanding season. Conventional baseball wisdom, to which I subscribe, has it that a good team does well in games decided by one run. But I wondered what if it is just chance which team wins 4-3 or 9-8? Would some teams win significantly more if the results were just a coin flip instead of skill? I undertook an experiment, which I readily admit is filled with holes, but the results are interesting.

First came in-depth, five-minute Google research to find how frequently games were decided by the slimmest of margins. One source reported that over a decade, 29% of the games were won by one run. Another source for one season had it slightly lower. I was surprised that the percentage was that high. I “confirmed” these rates by looking at the results on one day when all teams played. Four of the fifteen contests were decided by one run, for a rate of 27%. Over the 162-game season, I decided that on average a team was involved in about 46 one-run games.

Then to determine what the results might be in those contests if the outcome was a matter of chance, I decided to flip a coin forty-six times for each of the thirty major league teams. Of course, I was not really going to do this burdensome, boring activity (I might develop a callus on my flipping thumb). Instead, I found an online coin-flipping site that randomly generates heads and tails. This simulated flipper (there are many similar sites) allowed me to choose from a single flip to a string of tosses. Their nearest choice to my desired series of forty-six was fifty, and I decided that was close enough for my purposes.

Making my own random selection, I decided that each heads would represent a victory. When the results were in, I was not surprised that many of the trials clustered around twenty-five heads. More than half of the 30 “team tosses”–sixteen–produced “victories” of twenty-three to twenty-seven games. Perhaps these outcomes might affect a pennant race, but not very often. However, four of the sets of fifty tosses had from twenty to twenty-two heads. By chance, my hypothetical teams would have been six to ten games below .500 (twenty heads—victories means thirty losses, or ten games below .500 in one run games) and that certainly could affect who would win a division. Similarly, six outcomes fell from twenty-eight to thirty heads or six to ten games .500 (thirty heads or victories means twenty losses) in these simulated close games.

Four of the outcomes of these flipping sets of thirty, however, were particularly striking. On the negative side, one team would have won only nineteen games out of fifty by chance and another only fifteen. A manager with a record in one-run games of fifteen wins and thirty-five losses should start looking for another job.

On the positive side, one set had thirty-one heads and the remaing set had thirty-three. Thirty-three and seventeen in one-run games by chance, but this team’s manager would probably win awards and the team might win the pennant.

This exercise reminded me again of how unintuitive probabilities are for most of us. There is a reason why the study of probabilities came late in the modern development of mathematics and basic statistical tools such as significance testing are even more recent. And my thoughts, as they often do, turned to my admiration for the spouse.

The spouse—bless her eager heart thirsting for more knowledge–decided, yet again, that she would try to understand calculus. Wisely, however, she thought that she should first master precalculus. She has been taking online classes, and I have heard much talk about sines and tangents, matrices, and vectors. Now she is in a probability unit. Perhaps our conversation would have amused you as we struggled with what seems to be a simple problem: Using a standard, well-shuffled deck of cards, what are the odds of finding a spade by drawing two cards without replacing the first one back into the deck? If you instinctively knew how to calculate that, you were much better with probabilities than we were.

While that deck-of-card problem was cracked after considerable effort, flipping coins seems clearly straightforward. The chances of getting heads is fifty percent. We know, however, that flipping a coin ten times does not always yield five heads or that flipping a quarter fifty times does not always result in twenty-five heads. However, our instinct is that the result will be close to twenty-five. “Outliers”–such as thirty-three heads and seventeen tails–will be rare. Then there is the issue described to me by a Harvard statistician. He would assign his students to flip a coin a hundred times and record the results. He said he could tell when someone did not do the exercise and just made it up because their lists would seldom have significant runs of heads or tails while real flipping almost always produced, for example, six or eight heads in a row. Therefore, fifty flips would sometimes result in the number of heads well above or below the twenty-five number. Our intuition may be that fifty flips is a large enough trial to eliminate “outliers,” but it is not. And in case you might think that the internet flipper was flawed, out of the total of fifteen hundred tosses–fifty for each of the thirty team–the total number of heads was 748. With fifty flips, however, “outliers” were not really outliers.

However, when I have told my baseball friends about my exercise and say that chance alone might have a team win or lose an inordinate number of one- run games, they rebel at the notion and assert the baseball wisdom that good teams win more one-run games than they lose. It is not simply a matter of luck, and even after my experiment, I still tend to agree with them.

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First Sentences

“One winter morning several years ago, I got an email with some ridiculously exciting news.” A.J. Jacobs, The Puzzler: One Man’s Quest to Solve the Most Baffling Puzzles Ever, from Crosswords to Jigsaws to the Meaning of Life.

“The police decided to enter the flat, but rather than break down the door they called a locksmith, figuring that a few minutes either way were unlikely to make a difference.” The Shadow District by Arnaldur Indridason (translated from the Icelandic by Victoria Cribb).

“At a recent lecture on the Piltdown disclosures a member of the audience remarked, ‘When I read in the paper that Piltdown man was bogus, I felt as if something had gone out of my life; I had been brought up on Piltdown man!’”  J.S. Weiner, The Piltdown Forgery.

“In my dream I was reaching right through the glass of the window on a hockshop.” Fredric Brown, The Fabulous Clipjoint.

“Magic matters.” David Copperfield, Richard Wiseman, David Britland, David Copperfield’s History of Magic.

“It is never easy to move to a new country, but in truth I was happy to be away from New York.” Katie Kitamura, Intimacies.

“A little before eight on the morning of March 21, 1829, the Duke of Wellington, England’s prime minister, arrived on horseback at a crossroads south of the Thames, about a half mile beyond Battersea Bridge.” Kwame Anthony Appiah, The Honor Code: How Moral Revolutions Happen.

“It’s hard to know, ever, where a story begins.” Jennifer Haigh, Mercy Street.

“We forget that love is revolutionary.” Tiya Miles, All That She Carried: The Journey of Ashley’s Sack, a Black Family Keepsake.

“His cousin Freddie brought him on the heist one hot night in early June.” Colson Whitehead, Harlem Shuffle.

“The politics of inevitability is the idea that there are no ideas.” Timothy Snyder, The Road to Unfreedom: Russia, Europe, America.

“It wasn’t far off midnight, but it was still light.” Ragnar Jónasson, Snowblind. (translated by Quentin Bates).

“’We need every one of you,’ proclaimed an anonymous 1985 article in a major white power newspaper.” Kathleen Belew, Bring the War Home: The White Power Movement and Paramilitary America.

“The dust hovers in a cloud behind the Reykjavik coach, the road is a ridged washboard and we rattle on; bend after bend, soon it becomes impossible to see through the muddy windows and, before long, the Laxdoela Saga trail will vanish into the dirt.” Auour Ava Olafsdóttir, Miss Iceland.

“Somewhere in the vast northern ocean, between Iceland and Norway, Thorsteinn Olafsson got himself involved in the biggest mystery of the middle ages by making an honest mistake: he turned his ship a few too many degrees west.” Egill Bjarnason, How Iceland Changed the World: The Big History of a Small Island.

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Independent People on an Iceland Journey (concluded . . . finally)

          The Icelandic language has developed colorful phrases, at least according to Eliza Reid, a Canadian who is married to the President of Iceland. In her recent book Secrets of the Sprakkar: Iceland’s Extraordinary Women and How They Are Changing the World, she gives us: “A guest’s eyes see more clearly.” “On with the butter.” (Keep going, get a move on.) “Give it under the foot.” (To flirt.) “Never peed in a salty sea.” (Inexperienced.) “There lies the buried dog.” (The crux of the matter. Getting to the point.) “I come from the mountains.” (Out of touch.) “It lies in the eyes upstairs.” (Obvious.) “The raisin at the end of the hot dog.” (A pleasant surprise.) (Our guide insisted that that last phrase did not exist. A raisin might be said to indicate a pleasant surprise, but never in conjunction with a hot dog. Icelanders eat a lot of hot dogs. They come with many toppings. I tried to order one with everything in Icelandic, but, not surprisingly, my language skills failed. The couple hot dogs I had were very good. I was told that Icelandic hot dogs are different from ballpark franks because in addition to beef and pork, they also incorporate lamb.)

Icelandic Hot Dog Stand. Photo by AJ

          Although a comparatively small group has ever spoken, read, or written Icelandic, the world owes a huge debt to the language. Throughout history, much of literature has been oral and has disappeared. However, in the thirteenth century, Icelander Snorri Sturuluson, and probably others, began to record the sagas, myths, and legends in the Icelandic vernacular. Five centuries later Árni Magnússon collected and assembled as much of the medieval manuscripts as he could lay his hands on. These Old Norse writings, which I gather can be read relatively easily by a modern Icelander, have told us much about history from 900 to 1200 because many of the sagas were family chronicles of the contemporary world. They also preserved legendary figures that otherwise would have been lost. You might think of Thor or Odin as Scandinavian, but we know of them and other Norse figures because of the ancient Icelandic writings.

          Icelanders continue to value reading and writing. (Giving a book at Christmas is expected.) A sign in the airport said, in English, that one in ten Icelanders writes a book. Before the trip, I remembered that I had read an Icelandic mystery story and thought it might be interesting to read another, but I did not remember the author’s name. I googled for Icelandic mystery series, and to my surprise found that there were a half dozen or so all with good marks from reviewers. Remember: This in a country with 370,000 people. I read and enjoyed a few of them and learned something about Iceland from each. I also read a modern Icelandic novel and found it, too, to be very good. Some of the characters in that book wrote poetry and others of my readings indicated that the land produces many poets. I began to think that everyone in Iceland wrote verse. I asked the guide if she did. She said that she did not but quickly added that her brother was quite a good poet. (Later I learned that the guide owned a share in a Reykjavik art gallery and was an accomplished painter with a one-woman show coming up in a northern city.)

          And in these endeavors, I learned about a major writer I had not heard of before: Halldór Laxness, who won the Nobel Prize for Literature in 1955. (He was born with an Icelandic name but adopted Laxness from the place where he was raised.) His most famous book, Independent People, was so rich I could only read it in small doses to make sure that I would not miss too much. Touching, heartbreaking, filled with sly wit, it is a major work of literature. Almost as good is his Iceland’s Bell, which incorporates real events and figures, including Árni Magnússon.

When I returned home, I was asked if I would go back to Iceland or even consider living there. My first reaction was that my days are dwindling. There are many places I have not been, and they will take precedence over a return to the island. On the other hand, if I could be guaranteed to see the northern lights, I would go back, but I also realized that there are many other reasons to spend more time in Iceland. For example, I did not see a single McDonalds, but they do have a Costco. A roadside stop offered a panino. The stores displayed the same clothes in June that they must offer in January. It is the home of skyr. Iceland does not have mosquitos. I did not go to the Blue Lagoon, and it is worth plunging in. And a very good reason to go back are the Icelandic women.

          Ah, Icelandic women. They all seemed to be between six feet and six feet three, but not with a model’s body. They had ample bottoms, reasonable, but not overlarge busts, and a definable waist. Most had great smiles (from those we met, Icelanders laugh a lot) and a clear complexion that looks as if it were scrubbed moments ago. They did not need makeup to have rosy peach cheeks. While a lot of the small girls had almost snow-white hair, women’s hair generally has darkened into a light brunette with copious blonde streaks that the spouse said Americans would pay a hairdresser $400 monthly to achieve. And the Icelandic women all looked as if they could beat the crap out you. What was not to fantasize about?

Three Independent People on an Iceland Journey
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Independent People on an Iceland Journey (continued)

Our trip finished in Reykjavik where two-thirds of Iceland’s scanty population lives. At first glance, the capital city looks like a model town designed by Disney. Cute homes brightly painted and immaculately maintained. Clean streets. Well behaved, helpful people. Charming squares and parks. I say at first glance because I did see a few street people—a “crazy” ranting at full volume, a person looking as wasted as anyone I ever see in New York, some graffiti—but such sightings were rare. At third or fourth glance, Reykjavik appeared to be a model small city.

          The city has remarkable architecture, but the dominant structure is the church that sits on a hill in the center of the town. Iceland has a state Lutheran church, which was adopted centuries ago in good Christian fashion after the Catholic bishop or archbishop was slaughtered. The country, however, guarantees freedom of religion to all. (The guide told me that outside of Christmas and Easter, only maybe twenty percent of Icelanders went to church once a month.)

We often saw traditional-looking churches with picturesque steeples in the countryside that might hold seventy-five people if packed. These buildings were well maintained on the outside. In my forays, I did not find one that was unlocked, and I could only peer into the windows, but the interiors also looked in good shape. Often adjacent to the church was a small graveyard, and I would wander through them looking at the headstones, thinking about the lives and the grief of those who did the burying. We visited one church far removed from other habitations. While my traveling companions took a hike to the sea, I wandered on paths in the hummocky, mossy countryside. I stopped and listened. I could hear no human noise, even distantly, a rarity in my life, but I concentrated on the overlapping bird sounds for ten minutes, which is close as I have gotten to meditation in a long time.

Countryside Church. Picture by AJ

          The Reykjavik church—Hallgrímskirkju—was different. It’s large and cavernous, created in a modern design with a soaring bell tower seemingly held up by structures that mimic the natural basaltic columns seen throughout the countryside. The interior is unadorned with comfortable pews. The windows were clear, not stained glass, that let in lots of light.

Hallgrímskirkju. Photo by AJ
Hallgrímskirkju. Photo by AJ

The church has a remarkable organ, so remarkable looking that we came back for an organ concert that was part of a first-Saturday-of-every-month series. I was reminded in reading the bio of the organist, Kitty Kovács, of the many different lives there are and how hard a musician’s life can be. She was born and studied music in Hungary. She had won prizes around the world and moved to Iceland in 2006, first working as a piano teacher. Since 2011 Kovács has been an organist at a church unknown to me and as a teacher at a local music school on the Westman Islands, which sit a bit off the southern coast of Iceland. I don’t pretend to know much about organ music, but to me it was a wonderful concert that showed off the range of the instrument and the depth of her talent.

          Danish is a required subject in Icelandic schools, and at least to this tourist, almost everyone also seems to speak English. But the native language is Icelandic, which is a descendant of what was brought to Iceland by Vikings more than a thousand years ago and bears a relationship with modern Norwegian, Swedish, and Danish. However. for almost all its history, Iceland and its language have been essentially isolated from the rest of the world. The guide said that Icelandic is sometimes described as Old Norse, the language of Scandinavia but without a millennium of evolution.

          I am not good with languages (an understatement), but on most trips I pick up some basic things—good morning, good night, thank you, you’re welcome, etc.–and decipher some words on signs and menus. Not in Iceland. I would ask how to say something and try to repeat it, but my effort only brought a little laugh and another enunciation of the phrase. I never could hear the difference. The written language seems to have some sort of mark over or through every third letter, and there are letters that seem almost recognizable—a “p” or “d” for instance—but they aren’t and don’t sound anything like what I think of as a “p” or “d”. Double consonants seem to be pronounced much differently from single ones, and so on. The guide was asked, “If you wonder why Iceland is not more important on the world stage, did you ever think your language held you back?” There was no reply

          The language is maintained within Iceland’s small population, but few outside of Iceland speak it, and it will be interesting to see what happens to the language as time goes along. More and more foreigners are living in Iceland, but my guess is that many if not most of them manage by using English and don’t learn much Icelandic.

          Icelandic names, however, fascinate me. They don’t have traditional family names. Last names are the father or mother’s first name with the addition of the Icelandic equivalent of son or daughter added to it. If a Robert Johnson has a son named Tom, the child’s name is Tom Robertson, and if Tom has a son named Barak, then it will be Barak Tomson, so on. The result has made Iceland seem like a friendly place because first names are used, not the last ones. If you met the prime minister, Katrín Jakobsdóttir (Jakob’s daughter), you would address her not as Ms. Jakobsdóttir, but as Katrín. Even the phone book is alphabetized by first names.

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Snippets

In anticipation of the overruling of Roe, states passed new abortion laws, a number of which do not permit abortions even when the pregnancy was the result of rape or incest. These laws were passed primarily with the votes of conservative men. I assume they are concerned that otherwise their potential offspring might not be carried to term.

After the draft abortion opinion was leaked, many people, including Clarence Thomas, said that the leak irrevocably harmed trust in the Court. Now that the opinion is out, I no longer hear how harmful the leak was. How much was your faith in the Supreme Court harmed by the leak?

I have been thinking of a truism: Life is a sexually transmitted disease.

At this time of year, I remember the truism: Nothing is responsible for more false hopes than one good cantaloupe.

Was the comedian right who said that he believed in abortion and that often it should be mandatory–and retroactive?

At the riveting January 6 hearings, I notice that witnesses and representatives swig and swallow water from little plastic bottles. Is this environmentally unsound practice some sort of security measure?

I had not thought of Donald Trump as a contemporary artist before, but I am almost positive that I saw broken crockery on the floor with ketchup dripping down the wall in an offbeat gallery a few years ago.

The football coach’s prayers at the 50 yard line are constitutionally protected according to the Supreme Court. I assume that he was unaware of Jesus’s guidance in Matthew 6: 5-6: “And when you pray, you must not be like hypocrites. For they love to stand and pray in the synagogues and at the street corners, that they may be seen by others. Truly, I say to you, they have received their reward. But when you pray, go into your room and shut the door and pray to your Father who is in secret. And your father who sees in secret shall reward you.”

Many “patriots,” it seems, besought pardons from then President Trump for their activities in trying to overthrow an election. Trump did give pardons and commutations to some, such as Michael Flynn and Roger Stone, for crimes that were not related to January 6. Why, then, not to the others? I went to the closet in the guest room where I had tucked away my lawyer’s hat and put it on. I wondered what advice I would have given Trump about those pardons. First, I thought, “Get the money upfront.” Criminal defense attorneys know that it is hard to collect fees once a client has been sentenced to jail. And with Trump’s penchant for stiffing people (and for his not-very-likely-but-wished-for incarceration), the imperative–Get the money upfront–would have been even more important. Once I got beyond that financial consideration, I realized that I would have advised Trump not to give out pardons for anything related to January 6. Once Jim Jordan, Rudy Giuliani, Mark Meadows, and others were pardoned, they could no longer incriminate themselves about January 6 because they would no longer face criminal charges concerning those events. They could no longer validly claim the Fifth Amendment right against self-incrimination. Legally they would be required to testify about anything to do with trying to stop the lawful transfer of power or face contempt. It could not help my hypothetical client Trump to have such testimony. Therefore, I would have advised, don’t give the pardons.

The person who claims to be a self-made man usually admires his maker.

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The Fourth

Before the hot dogs and watermelon, before the sack race and the balloon toss, before the sparklers and fireworks, read the Declaration of Independence. And if you are of that inclination, pray for the United States of America.