Justice Postponed

Ophelia Benson

The day after Scott Pruitt resigned as head of the Environmental Protection Agency (EPA), Norman Eisen and Noah Bookbinder, of the watchdog organization Citizens for Ethics and Responsibility in Washington, D.C., wrote an op-ed in The New York Times on the ethical trainwreck of Pruitt’s tenure. They recalled a long string of horrors, and then in a plot twist at the end they glimpsed a brighter tomorrow: “Mr. Pruitt’s case demonstrates that in America, no one is above the law and common decency. Even if it’s possible to hold off the flood after the cracks in the dam begin to appear, at some point the dam eventually breaks.”

It’s a consoling, even a cheering, thought—but is it true? Not that I can see. A great many people are above the law, and even more are above common decency—think of the crowds of people cheering every racist or sexist remark Trump makes at his rallies. Bernie Madoff was above the law for many years, until the 2008 crash yanked him downward, and I doubt that his is the only Ponzi scheme there has ever been. Eisen and Bookbinder acknowledge that the flood can be held off but then say that at some point—eventually—it no longer can. But what if “at some point” and “eventually” never arrive? That’s always going to be the case for some people, the ones who don’t live long enough to see it happen.

It also seems all but certain that there are plenty of people above the law and common decency who are getting away with it because they haven’t been caught and never will be. The ProPublica reporter Jesse Eisinger wrote a book elegantly titled The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives, which argues that prosecutors no longer try hard enough to go after the big fish because they want an unbroken record of wins. It would be nice to think that at some point the dam will eventually break, but that doesn’t mean it’s generally true.

Of course Eisen and Bookbinder are themselves working hard to make the law catch up to the violations of the Trump administration, so they have more right than most of us to make optimistic claims about the inevitability of success. They can be read as expressing determination and reminding us how strong the cases are, rather than airing pious hopes. But claims of that kind make me uneasy all the same.

There’s a whole family of such claims: “People are basically decent”; “The truth will out”; “The American people aren’t stupid ”; “The best remedy for bad speech is better speech.” They’re generalized consolations, and they have it in common that they claim too much. If people are basically decent, why has the list of genocides grown so long? If the truth will out, why is the air so thick with lies? If the American people are universally not stupid, how did Donald Trump get elected? If better speech is the remedy for bad speech, when will that start to become evident?

We cheer ourselves up when we say things like that, and we have no business cheering ourselves up. It’s like rolling over and going back to sleep after the Titanic hits the iceberg. We are in an emergency, and we need to be alert a lot more than we need to be perky.

The cheery false generalizations are reminiscent of the way Broadway and Hollywood created a sanitized version even of the Nazi genocide. The Holocaust scholar Lawrence Langer wrote in Admitting the Holocaust of the sentimentalization of Anne Frank:

The line that concludes her play, floating over the audience like a benediction assuring grace after momentary gloom, is the least appropriate epitaph conceivable for the millions of victims and thousands of survivors of Nazi genocide: “in spite of everything, I still believe people are really good at heart.”

It’s impossible to disagree with him. There is no humans-flattering wisdom to be harvested from Auschwitz and Treblinka, and there’s no sentimental story to be told about how it all worked out in the end.

Psychologists call this tendency to try to make lemonade out of arsenic the just-world hypothesis: the belief that the world is fair, at least “ultimately,” even if not right this second. We seem to be up to our chins in sewage right now, yes, but everything will be okay in the end. Ironically, research shows that the just-world hypothesis makes people more callous rather than more generous and compassionate. Our need to believe in the underlying fairness of the cosmos even in the face of horrors causes us to believe that the victims of horrors did something to deserve it.

I’d like to nominate a cousin to the just-world hypothesis: the just-person hypothesis. The day after Trump named Brett Kavanaugh as his nominee for Supreme Court justice to fill Anthony Kennedy’s seat, the Washington Post published an article by a woman whose daughter is a classmate of Kavanaugh’s daughter at Blessed Sacrament School, who wants us to know what a good guy he is: “Much has been written about Brett Kavanaugh as President Trump’s nominee for the Supreme Court, but the discussion has focused on his record as a federal judge and in his legal career. I’d like to talk about him as Coach K.”

Going by what she says, he is indeed a good guy, at least to people who are like him—Catholic and prosperous enough to live in Washington, D.C., and send their children to a Catholic school—but the fact that he’s a good guy really isn’t what we need to know about him. His record as a federal judge and in his legal career is exactly what we need to know about him, and the idea that his niceness to people who know him is also relevant is yet another cheerful consoling falsehood. It depends on the belief that good people don’t do things that harm others, and that belief is profoundly mistaken.

Ophelia Benson

Ophelia Benson edits the Butterflies and Wheels website. She was formerly associate editor of Philosopher’s Magazine and has coauthored several books, including The Dictionary of Fashionable Nonsense (Souvenir Press, 2004), Why Truth Matters (Continuum Books, 2006), and Does God Hate Women? (Bloomsbury Academic, 2009).


The day after Scott Pruitt resigned as head of the Environmental Protection Agency (EPA), Norman Eisen and Noah Bookbinder, of the watchdog organization Citizens for Ethics and Responsibility in Washington, D.C., wrote an op-ed in The New York Times on the ethical trainwreck of Pruitt’s tenure. They recalled a long string of horrors, and then …

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