Why Not Shame David Brooks for Divorcing?

This David Brooks piece about how bad it is that we don’t shame and judge people who, among other things, stray from specific family forms is a sight to behold:

Reintroducing norms will require, first, a moral vocabulary. These norms weren’t destroyed because of people with bad values. They were destroyed by a plague of nonjudgmentalism, which refused to assert that one way of behaving was better than another. People got out of the habit of setting standards or understanding how they were set.

Next it will require holding people responsible. People born into the most chaotic situations can still be asked the same questions: Are you living for short-term pleasure or long-term good? Are you living for yourself or for your children? Do you have the freedom of self-control or are you in bondage to your desires?

I say this is a sight to behold because there has been a quiet story percolating that David Brooks is in the process of divorcing right now. His column prior to this one was basically an extended subtweet to his ex-wife. Conservatives closer to him have said things indicating they believe he is divorcing also. To be clear, Brooks has not publicly said that he is divorcing as far as I know, but he recently sold his home for $4.5 million just two years after buying it for $4 million, an odd move that likely indicates that the reports are true (by the way, the $500,000 of the capital gain on this house goes untaxed because of the capital gains exclusion that basically only benefits people like Brooks).

According to Brooks’ own lesson, he and his ex-wife should be judged extremely harshly for this. And it’s not just him who said we should do this sort of thing. Reihan Salam and Ross Douthat shared similar recommendations in their book Grand New Party about the importance of cruelly shunning people who deviate from traditional family forms.

Yet, despite all of this, not a single shunning word about Brooks has yet to be uttered from anyone in this camp. In fact, when I fired shots at Brooks on Twitter last year for his divorce, shunning advocate Salam said it lacked civility and grace.

This sort of behavior presents an obvious question: why aren’t conservatives practicing what they preach regarding David Brooks? As a public figure, he would seem to be an especially important person to bully and demoralize as part of the norm-setting process. If people close to him just savaged him, that would get the point across that this isn’t something you can do without suffering serious social repercussions.

The reason they don’t shame him, I submit, is because they know David Brooks, they care about David Brooks, they think it would be rude and offensive to kick a hurt and down David Brooks. Moreover, they don’t know and can’t know what happened inside the marriage to cause its dissolution, and therefore probably aren’t in the right place to make sweeping pronouncements about its legitimacy. In short, they have humane concerns about their friend whom they respect as a fully formed human being. They aren’t willing to hang him in the public square to dissuade off others because that would be cruel and they feel that.

Yet, this is precisely what they implore others to do in their books and columns. Of course, I don’t generally want people to engage in the prescribed bullying, for precisely the reasons that prevent these conservatives from doing it when their peers divorce. I am happy that they allow their humanity to overcome their rather absurd blustering about the importance of delivering a second dose of pain on those already suffering from relationship failures. I just wish they’d allow themselves to learn something from it.

Let’s Continue Referring to the “Work-Life Balance”

Adam Gurri has an interesting piece in which he criticizes the phrase “work-life” balance:

I think that “work-life balance” is an unfortunate phrase that has a great deal of currency. I’m not saying that everyone should just give up on having time to spend living outside of work. I’m glad there’s a conversation about prioritizing other parts of your life. But they are other parts. The simple point that I want to make is that you cannot compartmentalize your life; work is a part of your life and the rest of your life enters into your work from countless directions. What we want is not a “work-life balance” but a healthy, happy life overall, which must necessarily include a healthy relationship with whatever it is you do to make a living.

His point is that there isn’t a life bucket and a work bucket. Rather, there is just a life bucket, and part of it is work and part of it is leisure. You see, the “work” is part of your life as well.

But Gurri’s understanding of work here is deeply at odds with the traditions, norms, and conventions among Western societies, the Anglosphere in particular. Under the traditional master-servant common law, servants (think non-managerial employees) are essentially tools of masters (think bosses). The bosses assemble together machines, land, and servants and then orchestrate them to produce. When servants are on the clock (and even off the clock in some cases), it is not their life. They essentially belong to the master as an instrument of the master’s production.

Obviously statutes and some minor common law evolution has obviated this master-servant tradition a bit, but not that much. Think about why employers are responsible for the torts of their employees when the employees carry out the torts in the scope of their employment. This follows straightforwardly from the idea of the employee being merely an instrument of the employer while on the clock. Just as a boss would be liable for harm caused by their machines, they are liable for harms caused by their employees/servants.

At the common law, servants/employees are contrasted with independent contractors (think independent plumbers for instance) in that independent contractors control and direct their own work. They are also contrasted with agents (think executives) who can act on behalf of and bind the employer into contracts and such. So, the category of common laboring is actually set aside as different from other categories of work that don’t treat the person purely like a tool/instrument of the boss.

To be sure, the yuppie usage of the word “work-life” balance is troubling, and I presume that is what Gurri has in mind. Yuppies use it to refer to their balancing of their desperately vain efforts to achieve occupation-based status and spending time with their families.

But we shouldn’t let that usage tank the basic traditional distinction between work and life, which still describes the way real laborers navigate the world. As is reflected in the common law and our deep traditions and conventions, when such laborers are at “work,” it is not their “life.” In those moments, they belong to the boss as a tool to be used. During laboring times, they are — under both our traditions and Marxist thought — alienated from their purposive life because they do not get to direct and control their own work.

Judicial decision punditry and free association

Reading through today’s Harris v. Quinn decision was fun. It reminded me why I think the theater of judicial decisions is such a hilarious spectacle. Almost nobody actually forms their opinions on substantive political matters by using substance-neutral procedural considerations, but judges have to pretend to be doing that. That’s hilarious spectacle number one. Then, all of the commentators decide to play along and try to make their own substance-neutral procedural arguments and appeals in the punditry that surrounds judicial theater. That’s hilarious spectacle number two.

If you were trying to create a model that you would use to bet your money on judicial decisions, very few of the considerations that swirl around in our discourse would be included in it. Instead, the model would heavily weight any information you have about judge’s substantive political views irrespective of their proclaimed views on legal interpretation or content-neutral abstract rights like freedom of speech, religion, or association. Using the pretended substance-neutral rationales to animate your prediction model would see you bankrupted really fast.

That judges have to play along with the theater is understandable enough. It’s a long-standing tradition to decide cases like that and it is somewhat helpful to lower courts to lay out decisions like that. Additionally, maintaining the illusion of neutral adjudication is important for order. A judicial system in which decisions are a single paragraph stating political-tribal affiliations and substantive political opinions before stamping out a conclusion would lose that rule-of-law sheen that is supposed to make us respect learned judicial determinations. It would largely reach the same legal conclusions, but how judges pretend to get to the conclusions matters for legitimacy.

It’s much harder to understand why pundits do this though. I can’t decide if they just feel like that’s the game they have to play in order to argue for or against an outcome in a case, or if they have actually tricked themselves into thinking that their substance-neutral arguments motivate their preferred decision outcome. Are they being deceptive about what motivates them or are they merely delusional about it? It’s hard to say.

Political Spending
The reason the Harris case reminded me of this is because one of the issues in the case is whether requiring non-members represented by a union to pay representation fees violates free speech or association rights.

If you were trying to create a model that predicts what a given person’s opinion on that question is, you would weight their relative support or opposition of unions at nearly 100 percent. If you were writing a honest judicial opinion or punditry opinion about the issue, you would just say: “I support/oppose unions, so I think the representation fees are good/bad.” But that’s not what we get. Instead we get pundits and judges building vague castles in the sky about what free association means that also happens to generate a conclusion that miraculously aligns with whether they support or oppose unions.

Harris is about the ability to require a representation fee, but prior to Harris, the Supreme Court already outlawed, in both the public and private sector, collective bargaining agreements that require non-members to pay dues that are used for political spending. Non-members can be required to pay dues to cover representation, but not for political spending.

Right-wing opponents of unions say that this restriction is necessary for free association and free speech issues of members. That isn’t what actually motivates them obviously, but that’s the legal rhetoric you have to cite to reach your desired conclusion. So that’s what you get.

I say that obviously doesn’t motivate them because we have substantially identical association/speech issues when it comes to corporate political spending, which Citizens United has elevated to an unlimited right. In the case of corporate political spending, surely there is concern about the association/speech rights of shareholders, right? They may not agree with the corporation’s political aims, yet “their money” is going into it. Corporate legal institutions that don’t allow them to opt out of that political spending (and receive, for instance, some special political spending dividend to compensate them) are a severe assault on their abstract associational rights, right? Conservatives don’t seem to think so. It’s no mystery why.

In raising this point, I invite the distinction game, another of the great joys of judicial theater. Here the distinction game might involve saying that the difference is that shareholders can sell their shares, and so they aren’t forced to associate with the political spending of the corporation they own a share in. But then again, workers can quit their job if they don’t want to associate with the political spending of the union. That distinction doesn’t make much sense, but I am sure some great minds will come up with others that are meaty enough to allow them to hang their hat on, even though they don’t actually motivate their divergent views on the associational concerns of corporate and union political spending.

Punditry and judging will probably continue as it has for a long time on this stuff, even though it’s largely vacuous and deceptive. I wish it’d change though. Covering the Supreme Court for what it is and arguing honestly about why you want it to reach certain decisions doesn’t require some kind of deeply troubling cynicism. The Supreme Court in a good number of cases is simply a lagging, appointed legislative body that acts out its own substantive political views, not totally unlike the House of Lords. Why not just be candid about that instead of playing along as if any of these arguments mean anything to anybody?