The Narrow Road to the Deep North

The Narrow Road to the Deep North
By Richard Flanagan
Alfred A. Knopf, New York, 2014

The Narrow Road to the Deep North is brilliantly written and utterly harrowing.

During World War II, an estimated 200,000 Asian civilian laborers and 60,000 Allied prisoners of war were used as forced labor by the Japanese Imperial Army to build a 415 km railway linking Bangkok, Thailand and Rangoon, Burma (now Myanmar). About 60,000 civilians and over 12,000 Allied POWs died during construction of the Thai-Burma Railway, also known as the Death Railway.

The movie Bridge on the River Kwai is loosely based around these events.

Among the POWs forced to work on the railway were about 13,000 Australians, of whom more than 2,700 died.

Narrow Road to the Deep North - cover

The Narrow Road to the Deep North tells the life story of Dorrigo Evans, an Australian Army doctor, the senior officer among a group of Australian POWs, who tries to care for his men under brutal conditions. While the POW experience forms the heart of the novel, Richard Flanagan shows how even the survivors are profoundly damaged by war. Dorrigo Evans’ life in particular seems to be battered by malevolent random forces and missed opportunities.

Flanagan’s writing is extraordinarily powerful, especially in the imagery he uses to portray the suffering and the deaths of the POWs.

The novel takes its title from a book of the same name by the 17th Century Japanese haiku poet Basho. That book describes in prose and poetry Basho’s 2,500 km journey on foot from Tokyo to Tohoku in the northeast corner of the main island of Honshu. It’s essentially travelogue. There’s bitter, and I assume deliberate, irony in using the title of that book, an important work of Japanese literature, as the title of a novel depicting prisoners of war forced to build a road for their Japanese captors.

I’m not doing this book justice at all. It’s complex and deep, and probably needs several readings to be fully appreciated. It’s forceful and compelling and definitely worth reading, but it’s also dark and tragic and not for everyone.

Related Links

The Thai-Burma Railway and Hellfire Pass

Posted in Books | Tagged , , , , , , , , | 2 Comments

Informal Leadership: Leading Without Authority

During a lunchroom conversation at work the other day, a colleague asked how you can lead without authority. How can you be an effective leader without having the formal or positional authority of a VP, director or manger?

It’s a great question. I want to give a fuller answer here than my impromptu thoughts at the time. In my role as a technical program manager at a Seattle-area ecommerce company (no, not that one), just about everything I do is accomplished without formal authority. I’ve been both a manager and an individual contributor over the years so I hope I can offer some useful perspective whether your job requires you to lead without authority or whether you’re just looking for ways to broaden your influence in your organization.

There’s a massive amount of literature about what makes a good leader and I don’t claim to have read more than a tiny fraction of it. One recurring theme though is the distinction between being a manager and a leader. While the best managers are also great leaders, great leaders don’t have to be managers. I like the term informal leadership for describing leadership without being a manager.

So if you’re not a manger but still want to lead or develop leadership skills, what can you do?

To start with, the scope for informal leadership is extremely broad. Informal leadership is not just picking over the table scraps left behind by formal leaders. In fact, I can think of just four things leaders do only when they’re managers:

  1. Staffing activities like hiring, firing, rewarding and promoting.
  2. Allocating people or money to teams and projects
  3. Setting goals and priorities
  4. Assigning tasks

Of course these things are important and hugely impactful, but just about everything else leaders do can also be done without formal authority including developing vision and strategy, defining and exemplifying team values, communicating, simplifying, collaborating, coaching, problem solving, etc. As an informal leader, you may not control these things or have the final say, but you can contribute to and often heavily influence them.

There are even some things you may be able to do more effectively as an informal leader:

  • Scouting the road ahead, looking for opportunities and threats, identifying promising new technologies
  • Challenging assumptions, practices and systems and experimenting with new ones
  • Spotting problems, conducting detailed technical investigations, and proposing and implementing solutions

That’s because managers, by definition, have to manage existing businesses, workloads and people. They can’t spend too much of their time immersed in detailed technical or operational issues. Software development managers, for example, cannot review every line of code or design change. And the Vice President who years ago wrote in C and C++ probably can’t even spell R today. That leaves space for others to step forward and play an informal leadership role. It’s not just an opportunity, it’s a necessity. Teams can’t function properly without informal leaders because managers, the formal leaders, can’t do it all.

Okay, so how can you be on effective leader without authority? I think success as an informal leader depends upon three things.

Credibility: You need to be knowledgeable, believable and rational for others to take you seriously. The best place to start is the area you’re presently working in, where you already have expertise. You might be a senior engineer or an architect guiding more junior members of your team, for example, or a new hire with relevant prior experience from another company. This knowledge and experience can serve as the foundation for informal leadership. Over time if you build on and broaden that foundation you’ll gain credibility in more areas.

Integrity: Most people have little difficulty not being lying, cheating, back-stabbing scoundrels. There are exceptions, of course, and they should be avoided like radioactive waste. But what I’m referring to here is positive integrity, the things you do rather than things you don’t do. This includes treating everyone with respect, assuming positive intent in others even when you disagree, communicating clearly and honestly, giving constructive feedback when necessary, keeping your commitments, listening carefully, and not gossiping about what you hear.

Helping others: I think this is really what informal leadership is all about. Helping others, your co-workers and your managers (yes, them too), achieve their goals; recognizing problems, pitfalls and roadblocks; helping to resolve, avoid or remove them; helping everyone on your team to learn and grow.

Don’t formal leaders, managers, also need these qualities? Absolutely. But they’re even more important for informal leaders because they don’t have the positional authority that managers do.

Perhaps the hardest part about informal leadership is recognizing the opportunities and the needs. Look for gaps and overlaps. Listen for gears grinding and brakes squealing. Then act. Perhaps you notice persistent performance issues in a particular component. Talk to the relevant stakeholders and propose a re-design. Look for opportunities to extend or re-purpose existing system to meet new needs or fix critical problems. How many times did Scotty or Geordi save the day on Star Trek by reconfiguring, rerouting or realigning some part of those absurdly unreliable warp drive engines? Or maybe you see there’s interest in a new approach to data modeling or machine learning. Try putting together an informal study group to learn about it, the way Hermione Granger organized a Defense Against the Dark Arts group in Harry Potter and the Order of the Phoenix (book, movie). It’s not always technical, and it’s not always work-related either. Sometimes what a team needs most is a social convener like the character Elizabeth McKenna in The Guernsey Literary and Potato Peel Pie Society (book, movie). She led by recognizing the need for connection and companionship among her neighbors living under German occupation. She also showed tremendous courage and moral leadership.

I can’t promise that informal leadership will necessarily get you your next promotion, or that it will automatically put you on a path to a management position with formal authority. But I’m certain you’ll be better for it, and so will everyone you work with.

Posted in Uncategorized | Tagged , , | Leave a comment

We Don’t Say Goodbye Anymore

A while ago I was watching an episode of Murdoch Mysteries, a detective series set in Toronto in the late 1890’s. At the end of the episode our hero, Detective William Murdoch, says goodbye to the visiting Egyptologist who was a central figure in the story. From the way the scene was acted, it struck me that both characters expected never to meet again. Their parting was final. And back in the 1890’s that would have been the norm.

Murdoch Mysteries

In fact, as recently as 20 years ago, if you went to school with someone or worked with them for a time or met them on a trip or at a conference, saying goodbye usually was final. Graduations, job changes and vacation endings were bittersweet precisely because they were endings.

Sure there were always a few people we grew exceptionally close to. For those special people, keeping in touch required work, conscious effort like writing letters, sending post cards or making the occasional long distance phone call which used to cost real money. But for the most part people passed in and out of our lives all the time.

This isn’t true anymore.

Today, by default, we stay connected to everyone forever.

When people change jobs or cities or move out of regular daily contact, they linger on in our lives as Facebook friends, LinkedIn connections or Instagram followers. Years go by and we continue to see them in our feeds, posting about their kids growing up or their new job or their latest vacation. We see their cat photos. While they might recede into the digital background of our lives, they don’t fade away entirely. There’s never a final parting.

Now it takes conscious effort to disconnect from someone. To sever the relationship you have to unfriend or unfollow or block them. You’re explicitly rejecting them, expelling them from your life. It feels a little uncomfortable, even a little anti-social. So you find a reason, a justification, something more than just decluttering your contact list, like discovering the person is rabidly pro-Trump or anti-vaccination. In fact the main disadvantage of all this persistent connection is that it can be very hard to completely purge undesirable people from your life. But usually the advantages of staying in touch forever outweigh the disadvantages.

Social media and other internet technologies enable us to maintain relationships despite distance and circumstance. The corollary is that they help us avoid the pain of parting. They hold out the tantalizing possibility of reunion.

And it’s not just the internet. Reliable air travel helps too. Two hundred years ago, if you left the country of your birth to make a new life in a new land, chances are you would never see your parents, siblings, or neighbors again. A wrenching final goodbye! Now you can just hop on a plane and visit each other. And between visits you can Skype, Facetime, text or email.

Nowadays we don’t even say goodbye in our online conversations. There’s just a longer gap between messages. A particular conversation might run its course, peter out into an exchange of smileys or thumbs-up emoji’s, but there’s no way to “hang up” at the end of a text message or Messenger conversation. The medium is asynchronous, so a gap of a few minutes or a couple of hours is normal. A gap of a few weeks or months isn’t unusual either, it’s just a longer gap. It’s not the end. It’s not goodbye.

Avoiding the pain of parting in nothing new. It’s baked into our language, into how we say goodbye. The French say “Au revoir,” and the Germans say “Auf Wiedersehen.” In Russian, it’s “Do svidaniya,” (До свидания) and in Mandarin Chinese, “Zai jian” (再见). They’re all variants of the same thing: “see/meet you again.” In other words, “this is not our final parting.”

The pain of parting seems to be so terrible that we go to great lengths to avoid it. Is that because it reminds us of the Final Parting that awaits us all? Or is it because we crave connection in a world where we’ve become increasingly isolated, as Harvard Professor Robert Putnam has famously documented in his book Bowling Alone?

Whatever the reason, technology helps us reduce that pain, though it can’t completely eliminate it, of course. The truth is we still feel what Shakespeare called the “sweet sorrow” of parting even if we remain connected online.

But how real are relationships that exist only online? Can you actually have a meaningful connection when all your interactions are mediated through devices and text? Or are they just zombie relationships that we can’t bring ourselves to terminate?

As I see it, the time and energy we devote to these relationships is a strong signal of their continuing importance in our lives.  Our interactions may not be as rich or as frequent, but just because they’re online doesn’t mean they aren’t real.

I think this perpetual connection is overwhelmingly a good thing. Instead of a binary on/off state, our relationships now exist along a continuum of connectivity. At one end are the people we see every day in the physical world; our family, co-workers and close friends. In fact, the vast majority of our online communication is with these people, the ones we’re already closest to. Next come people we don’t see often; former classmates or colleagues or distant relatives, followed by people we don’t see at all anymore. We stay in touch with them online, keeping up to date about their kids, their jobs and their vacations. If we do meet again, at family or college reunions or on trips to cities where old friends now live, re-connecting is easier and more natural. We can slide back along that continuum, reestablishing in-person contact.

The continuum works the other way too. Increasingly we encounter people online first and only later meet face to face to break bread and exchange pheromones.

As technology continues to advance, online communication will get easier, richer and more pervasive. We’ll be able not just to hear and see each other, but also to share immersive experiences using virtual or augmented reality, holographic imaging, wall-sized displays and other yet-to-be-invented technologies. Today’s online games, where people connect over the internet to fight battles or go on quests together provide a glimpse of  the possibilities.

What will this mean?

We could become more insular. Some people might want to stay tightly connected to the communities where they were born or went to school. Don’t want to leave the warm embrace of your village or your circle of friends? Take them with you! Wherever you go, whether it’s on the other side of town or the other side of the planet. If you want, you’ll be able to live your entire life inside a comfortable bubble, never saying goodbye to anyone, and never admitting anyone new either.

On the other hand, we could become more open, choosing to explore broadly, looking for potential friends or mates from all over the world and enjoying a wide variety of activities  online before deciding to move up the continuum and get together in person. Online dating is an early indication of this trend as The Economist magazine points out in this article, Modern Love.

The choice will be ours.

Either way, technology enriches our relationships with the people we see every day, the people we just met and the people we might never see again.

And it reduces the pain of loss when someone leaves our life because we never have to say goodbye.

Posted in Computers and Internet | Tagged , , , , , , , | 1 Comment

Blackfish City

Blackfish City
By Sam J. Miller
HarperCollins, New York, 2018

A warrior woman comes to the city of Qannaq in a small skiff accompanied by an orca and a polar bear.  Who is she?  Why has she come?  What’s her plan?  That’s the hook that pulls you into Blackfish City by Sam J. Miller.

Blackfish City - cover

Miller writes science fiction and horror stories, mostly for young adults. He’s been nominated for numerous honors including the Nebula and Theodore Sturgeon awards. Blackfish City is his first novel for a general audience.

At some unspecified point in the future, most of the world’s cities have either been flooded or burned as a result of climate change. Horrific slaughter has occurred as humans try to build, flee to, and survive in new cities designed for Earth’s changed environment. Qannaq is one such place: a floating city in the shape of an eight-armed asterisk, anchored above a geothermal heat vent in the Arctic Ocean east of Greenland and north of Iceland. It is home to about a million people, mainly immigrants and refugees who have come with nothing but their stories.

Blackfish City tells the story of a family ripped apart by catastrophe and genocide yet bound to each other by love and other rather more mysterious forces. The story is told mainly from the perspective of four characters who seem completely unrelated at first. Pretty soon their connections are revealed as the story line propels them together in a deadly struggle with the shadowy figures who control Qannaq.

The narrative skips from one character to another with each chapter. I found this a little confusing at times, possibly because I read the book over a couple of weeks and had to double back once or twice to get re-acquainted with the characters. As with any story involving an ensemble cast, the emphasis is more on plot development than character development. And in fact the story is well-paced and builds to an emphatic climax.

Like all good science fiction, Blackfish City reflects aspects of the contemporary world back at us. In this case, controversies around immigration, housing shortages, new diseases and climate change.

While I enjoyed the story, I was actually more intrigued by the rich backstory Miller has created. Blackfish City felt very much like the opening episode in what could be a whole series of stories or novels. There’s enough unfinished business at the end of the book, and vast unexplored territory in the backstory to keep Miller busy for years writing prequels and sequels. I’ve no idea if that’s his plan, but I’ll be on the lookout for more.

Posted in Books | Tagged , , , , , , , , , | Leave a comment

Crucial Conversations

Crucial Conversations: Tools for Talking When Stakes Are High (2nd Edition)
By Kerry Patterson, Joseph Grenny, Ron McMillan, Al Switzler
McGraw-Hill, New York, 2012

Have you ever had a conversation with someone and they suddenly got defensive? Maybe you were talking with your partner or your child and you brought up some behavior of theirs that you found annoying or troubling. They took it badly. They thought you were being overly critical, that you were always critical. Tempers flared, harsh words were exchanged, doors were slammed.

Ever had a conversation with someone and suddenly you got defensive? Maybe you were talking with your boss, perhaps during The Dreaded Annual Performance Review, and you received some feedback that you thought was unfair, unhelpful or just plain unfounded. Screaming and yelling at your boss was out of the question so perhaps you became withdrawn and sullen, gave one-word answers and left the meeting as soon as you could.

Ever wish you could have a conversation with someone but didn’t know how to even broach the subject let alone achieve a positive outcome? Perhaps there’s someone you work with who frequently misses deadlines, or takes credit for the work of others, or makes sexist comments. You don’t know what to say, so you say nothing, but inside you’re seething, telling yourself this person is an idiot, a jerk, or both. You can barely stand to be in the same room with them, let alone work together.

What all these conversations have in common is that they involve opposing views, high stakes and strong emotions. They are what Kerry Patterson and his co-authors define as crucial conversations.

Crucial Conversations cover

Crucial Conversations, the book, teaches you how to recognize these conversations, plan for them, and successfully manage them to achieve your goals. It presents strategies and skills and many pages of examples in a clear seven step program. I’m going to focus on just two of these seven steps, the two that the authors say are the most important.

“Learn to Look”

Before you can adopt any of the strategies or master any of the skills presented in the book, you need to recognize crucial conversations when they’re happening, or preferably beforehand. The authors call this “learning to look.”

Detecting the signs of a crucial conversation, while you’re in the middle of one, isn’t easy at first. That’s because what starts as an ordinary conversation can turn crucial in an instant. So you have to learn to participate at two levels. You must monitor both the content of the conversation (what’s being said), and the conditions (how it’s being said and how people are responding). The authors call this “dual-processing.” Others might call it mindfulness. Ray Dalio, in Principles, refers to it as looking down on your personal machine. The idea is to maintain a little detachment so you can look for signs the conversation is becoming crucial.

Monitoring the conditions of a conversation means observing how people are responding. Start by checking your own responses.

  • Physical: Do you feel your gut tightening, your jaw clenching?
  • Emotional: Are you starting to get angry, or frightened?
  • Behavioral: Are you pointing your finger, or raising your voice?

In others, you need to look for signs of what the authors call “silence or violence”. Is the person you’re speaking with becoming loud and aggressive (violence), or withdrawn and noncommittal (silence)?

In both yourself and others, these behaviors are signs of fear. They signal a loss of safety. If people do not feel safe in a conversation, if they fear they might be harmed or rejected, they won’t participate fully. They won’t contribute their ideas or their opinions, and they won’t listen to the ideas or opinions of others. They’ll revert to silence or violence.

“Make it safe”

Whenever you detect silence or violence in others or in yourself, your first job is to restore safety to the conversation. The means stepping out of the stream of discussion – the content – to focus on the conditions. The authors recommend doing two things:

  • Establish mutual purpose. To quell the fear of harm, try to identify a mutual purpose. It may be something more abstract or generalized than the subject of the conversation. For example, rather than argue about your partner flirting with other people at a party, you might need to both agree to work on creating a happier relationship. You might not appreciate that your co-worker missed another deadline, but instead of tackling that head-on, you could try to establish a mutual goal such as functioning more smoothly as a team.
  • Establish mutual respect. The authors point out that when people don’t feel respected, safety evaporates. They immediately switch from discussing the original topic to defending their dignity. They’ll become emotional, unreceptive to ideas, almost incapable of hearing any of the content of the conversation until their dignity and respect are restored. And you’ll do the same if it’s you who feels disrespected. To restore respect, you’ll need to step out of the conversation to focus on your similarities rather than on your differences.

So how do you establish mutual purpose and respect? The book suggests:

  • Apologize: If you’ve made a mistake that has hurt others, apologize. You have to be sincere about this. Insincerity is easily detected and will only exacerbate mistrust.
  • Contrast: To clear up a misunderstanding, use contrast. State what you don’t want or didn’t intend, and follow with what you do want or do mean. “The last thing I wanted was to cause X. What I really would like is Y.”
  • Create mutual purpose. Make it clear you’re committed to finding a mutual purpose. Recognize that the other person has a purpose too. Try to understand what it is. Ask questions to draw it out. Once you understand it, you’re in a better position to work together to come up with a mutual purpose and to address is with new strategies or approaches.

Once you’ve restored safety, you can return to the content of the conversation, though of course by now that content may have been re-shaped, hopefully into something more productive.

Learning to look and restoring safety are the two cornerstone skills for handling crucial conversations. They, along with the other steps and strategies detailed in the book are designed to help you achieve what you want for yourself, for others, and for your relationships.

Unsolicited Feedback

In general I really appreciate books that give you an organizing framework for thinking about a problem or a subject area. Crucial Conversations certainly does that, plus it provides concrete guidance for how to handle specific and difficult situations at home and at work. I think that makes it very worthwhile reading.

I haven’t put the lessons of Crucial Conversations to use in my own conversations yet, but I have been trying to develop the habit of being a bit more detached just to make space for that dual-processing recommended in the book. We’ll see how it goes.

The book has made me reflect on some past conversations though, particularly with my family, when I lost my temper or simply walked out of the room in frustration. I could have used this book years before it was written.

Related Links

Crucial Conversations – official site

Posted in Books | Tagged , , , , , | 1 Comment


by Ray Dalio
Simon & Schuster, New York, 2017

I don’t often read books by celebrity CEOs. They can be jejune; more a testament to the author’s ego and less about providing any real insight or substance. Principles by Ray Dalio is a partial exception. There’s ego here for sure, but a good amount of substance too.

Principles - cover

Dalio is the founder of Bridgewater Associates, one of world’s largest investment management firms. It serves institutional customers like pension funds, foundations and even governments. Currently it manages about $160-billion in assets. Principles originated as internal company training material. Published last year, it was Amazon’s top selling business book for 2017.

Let’s clear up one thing from the start. To me, the word “principles” refers to a few fundamental rules that form a code of conduct or the foundation for some field of study. The Ten Commandments, Asimov’s Three Laws of Robotics, Peano’s five axioms, even Amazon’s fourteen Leadership Principles are all fine examples.

Well this book is not that.

Instead it’s a well thought-out, hierarchically organized set of a couple of hundred heuristics refined over Dalio’s forty year career that are designed to help you get the most out of your life and work – whatever your definition of “most.”

The core idea of the book is that we should live our lives in a continuous cycle of growth or evolution. We set goals and attempt to achieve them; sometimes we succeed but often we fail; we reflect on our failures and try to learn from them; we adjust our principles based on what we’ve learned; and finally set new (and bigger) goals. Most of the book, and most of the principles, are about how to do these things effectively.

Dalio encourages us to reflect on our experiences and to refine our own set of principles as we go through life. This requires developing a certain amount of detachment. He suggests thinking about ourselves as a machine. Most of the time we’re operating “inside” our machine, going through our daily lives, executing our plans, etc. But it’s important to take the perspective of the machine’s designer and “look down” on it from time to time. See how it’s working. Does it need repair, or a tune-up, or a complete redesign? As we embark on new goals, or evaluate our progress against existing ones, this dual perspective is really useful for evaluating our situations and deciding whether and what changes are needed.

But it’s the ideas of radical open-mindedness and radical transparency for which Dalio is most famous, or perhaps notorious. These two ideas – principles in their own right – reoccur throughout the book. To make the best decisions, we must seek out the best available information and advice. That means being open-minded enough to consider ideas that conflict with your own, or that you’ve completely missed. It also means being transparent, sharing your ideas and opinions openly knowing they might be criticized or contradicted, but knowing also that respectful debate and disagreement lead to ideas being sharpened, strengthened and improved. It’s essentially a call for humility that I wouldn’t normally expect from a powerful CEO.

In practice, however, it’s led to accusations that Dalio takes these ideas to extremes, running Bridgewater like a cult, with all meetings recorded and junior employees being publicly criticized in front of their peers.

The book is divided into three parts. This first third is a brief autobiography, well a hundred and twenty-odd pages anyway. The second part is covers life principles and the final part covers work principles. Apparently there’s a follow-on book that will focus on finance and economic principles.

I read about half the book. I skipped through most of the autobiography, read the life principles section in detail and skimmed the work principles section. Frankly you don’t need to read the whole thing either. Instead, I think you can treat it as a useful reference book, returning to it from time to time when you’re faced with new or difficult situations.

Unsolicited Feedback

I can’t say I discovered any revolutionary ideas in Principles, but taken as a whole they form a solid framework for identifying and addressing work and life problem to help you meet your goals. I do wish this book had been available when I was younger though. Having a framework like this and developing the habits Dalio encourages early in life or career could have a dramatic effect over many years, kind of like compound interest. Older readers will probably have worked out many of Dalio’s principles for themselves, even if they haven’t codified or organized them as neatly as he has.

Related Links

Principles web site

Mastering the Machine, a 2011 profile of Ray Dalio by John Cassidy

Posted in Books | Tagged , , , , , | 1 Comment

Trump v. Hawaii

Supreme Court

Reading through the Supreme Court’s decision in Trump v. Hawaii – the Muslim travel ban case – is like drifting off to sleep on an ordinary commuter train headed for home and then being jolted awake when it shudders to a stop, only to discover that you’ve arrived in Mordor.

It all starts off so reasonably as the train gets under way. Chief Justice John Roberts, writing for the majority, sets out the task before the Court: to decide whether President Trump had the legal authority to issue Presidential Proclamation #9645 and whether its terms violate the Establishment Clause of the First Amendment.

He takes us through the history of the Proclamation — #9645 is the third version – and the various legal challenges to it.

Next there’s a quick stop at Justiciable Station just to make sure the Court actually has the authority to decide this case. (The Supreme Court gets to decide whether it gets to decide.) Not surprisingly, it decides that it does indeed have the authority, or rather it assumes it has the authority, and presses on.

Now we come to the first major uphill pull, the question of whether the President had the legal authority to issue Proclamation #9645. That authority, if it exists, comes from section 1182 of the Immigration and Nationality Act (INA). The Court examines the text of this section in minute detail and concludes, not surprisingly, that the terms of the Proclamation are well within the authority granted to the President.

We’re at full speed now as the Court briskly dispenses with another challenge, that the Proclamation violates section 1152 of the INA prohibiting discrimination in the issuance of entry visas. Irrelevant, cries the Court, this Proclamation concerns eligibility for admission which is a “different sphere” than visa issuance.

The train slows for another brief stop, this time at Standing Station, to determine whether the plaintiffs in this case are eligible — have standing — to bring a constitutional challenge before the Court. You can’t just show up at the Supreme Court and challenge a law because you don’t like it, you have to demonstrate a specific and personal harm under the Constitution. The plaintiffs show their tickets to the conductor and are not booted off the train.

Picking up speed once more, we come to the final question of whether the Proclamation violates the Establishment Clause of the First Amendment. In other words, does it discriminate against Muslims? The Court reviews numerous blatantly anti-Muslim statements uttered by candidate and then President Trump, including his infamous call for a

“… total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” [Opinion of the Court, p. 27]

The Court says its job is to not denounce these statements but rather to decide how to weigh them against a “neutral” Proclamation that falls within the core of the President’s responsibility.

It says that as long as there’s a good reason for the policy, what it calls a “rational basis”, it will uphold the policy regardless of any “extrinsic” statements. At this point you can hear the heavy thunk! of a railroad track switch and the train veers off in an unexpected direction.

In short order the Court finds that the Proclamation does have a rational basis: national security. It reverses the injunction granted by the lower courts and hands the case back for further proceedings. As the train squeals to a stop with a final lingering hiss of the brakes, the Proclamation goes into full effect.

The United States Supreme Court has just upheld President Trump’s travel ban.

You look out the window in terror. You don’t recognize this place. How the hell did we end up here?

* * *

Let’s go back and take a more detailed look at some of the key points in the case.

Proclamation #9645 is the third version of a ban on travel to the US affecting people from predominantly Muslim countries. The first two versions were challenged in court and then revoked and revised by the Administration. 9645 restricts entry into the United States by persons from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, ostensibly to prevent threats to public safety. (Chad was later removed from the list because it improved its identity management practices.) It exempts lawful permanent residents (Green Card holders) and people from these countries who have been granted asylum. There is also a waiver program under which foreign nationals can request an exemption if they meet certain conditions.

The suit challenging the Proclamation was brought by the State of Hawaii, three individuals, and the Muslim Association of Hawaii. These plaintiffs claim the Proclamation violates the INA and the Establishment Clause of the First Amendment because it is based on anti-Muslim bias rather than any real concerns for national security. The three individual plaintiffs claim harm from this Proclamation by being separated indefinitely from family members who live in the affected countries. The Court acknowledges the harm and grants them standing.

So there were two issues for the Court to decide in this case:

  1. Does the Immigration and Nationality Act give the President the legal authority needed to issue the sweeping travel bans contained in Proclamation #9645?
  2. Do the terms of the Proclamation violate the Establishment Clause of the First Amendment, that is, do they infringe on the Constitution’s guarantee of religious freedom?

In my view there was never much doubt about the first question. The text of the Act is pretty clear: it does grant the President broad authority and flexibility to determine who is granted admission into the United States and under what terms and conditions. Other Presidents have issued similar travel bans; President Carter issued one banning visas for Iranian nationals, and President Reagan blocked immigration to the US by all Cuban nationals.

The heart of this case, then, and the real controversy around it, lies in the second question.

The First Amendment to the Constitution states,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The first part of the Amendment, “Congress shall make no law respecting an establishment of religion,” is known as the Establishment Clause. It prohibits the government from establishing an official religion for the United States, from giving preference to one religion over another, and even from giving preference to religion over non-religion.

The plaintiffs allege that the Proclamation unfairly discriminates against Muslims in direct violation of the Establishment Clause. Donald Trump’s numerous anti-Muslim statements, as a candidate and as President, form the basis for their lawsuit. Indeed, it’s impossible to read those statements and not believe that the Proclamation was influenced and motivated by the President’s obvious hostility, or animus, towards Islam. The legal question is whether or not that animus is sufficient grounds to invalidate the Proclamation.

The Court extensively reviews Trump’s anti-Muslim statements but then decides that such “extrinsic evidence” will be ignored if there’s a reasonable justification for the policy.

“As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” [Opinion of the Court, p. 32]

This is the most important sentence in the entire decision. In fact, you can stop reading right here. The Court is saying loudly and clearly that it will not decide against the President, despite all his hateful rhetoric, if there’s even the slightest justification for the policy. It’s over, folks. It’s a walk-off grand slam for Trump.

Why? Because the justification provided by the Government, and accepted blindly by the Court is national security, the modern scoundrel’s last refuge.

A few pages later, the Court delivers the final blow.

“Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review.” [Opinion of the Court, p. 38]

This is the Court saying, in effect, “Well the Government told us this is all about national security and we believe them so we’re going to give the President a pass.”

You have to wonder if there’s anything Trump could say that would convince the Court of anti-religious bias infringing on the Constitution. Turns out they were quite clear: no there is not. They didn’t just give him a pass, they gave him a blank check. He can, and will, continue to spew and tweet bigoted vitriol for the rest of his administration with complete impunity.  All he has to do is sprinkle a little national security pixie dust here and there the Supreme Court will roll over in supine deference.

Justice Anthony Kennedy, who announced his retirement just a few days after this decision was delivered, wrote a brief opinion supporting the majority. In it he urges elected officials to adhere to First Amendment guarantees even in matters like foreign affairs where the Courts have limited power to scrutinize or intervene. He ends with,

“An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.” [Kennedy dissent, p. 2]

Noble sentiment. Too bad he didn’t do more to preserve and protect those liberties here. If that was his parting gift to the nation then good riddance, I say.

* * *

Defeating the travel ban Proclamation was always going to be an uphill battle. The Supreme Court has a long history of deferring to the Executive branch in matters of foreign affairs and national security.

So it’s not surprising the Court ruled the way it did. Disappointing, but not surprising.

But to understand just how bad this decision is, we need to look at two other cases.

The Masterpiece case concerned a Colorado bakery whose owner refused to bake a wedding cake for a gay couple because he opposed same-sex marriage on religious grounds. The couple complained to the Colorado Civil Rights Commission claiming discrimination on the basis of sexual orientation. The Commission decided in favor of the couple and the lower courts confirmed that decision. Now the Supreme Court had to decide whether the Commission itself violated the Constitution.

The Court ruled that the baker’s constitutional right to freedom of religion had been infringed because some members of the Colorado Civil Rights Commission made comments that showed anti-religious bias during hearings in his case. This decision was handed down just two week prior to the decision in Trump v. Hawaii. The glaring double standard was not lost on Justice Sotomayor who wrote in her dissenting opinion,

“Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, … the majority here completely sets aside the President’s charged statements about Muslims as irrelevant.” [Sotomayor dissent, p. 26]

You might expect the Court to hold the President of the United States to the same standard as it holds members of a state-level commission, if not higher. Apparently not. Maybe the Court would have decided differently if national security had been a factor in baking wedding cakes.

Even more frightening is the case of Fred Korematsu. During World War II, the US government ordered the forced removal of about 120,000 people of Japanese descent, including roughly 70,000 American citizens from the west coast of the United States to inland internment camps. Korematsu, a native born American citizen challenged the removal order on the grounds that it discriminated against him solely on the basis of race. He lost his case in the lower courts.

In 1944, in what is widely regarded as one of the worst decisions in its history, the Supreme Court upheld the lower court decisions on essentially the same grounds as those here in Trump v. Hawaii, national security. Today’s Court chose Trump v. Hawaii as the occasion to finally overturn the decision in Korematsu, calling it “gravely wrong the day it was decided.” Yet the Court maintained that Korematsu is unrelated to this case:

“The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” [Opinion of the Court, p. 28]

But of course it’s the same flawed reasoning and the same unquestioning deference to the Executive branch that underlies both decisions, as Justice Sotomayor points out:

“This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.” [Sotomayor dissent, p. 28]

The decision in Trump v. Hawaii fills me with dread. The Supreme Court is heading down the same tracks and making the same mistakes it did in Korematsu. And it may get worse if more conservative-leaning judges are appointed to the Court. You can easily imagine more cases like this making their way through the courts in the coming years, perhaps involving detention camps for undocumented immigrants and asylum seekers, for example. Anyone expecting the Supreme Court to act as a reliable check on government action in cases like this is going to be disappointed.

Related Links

Opinion: How the Supreme Court Replaced One Injustice with Another by Karen Korematsu (daughter of Fred Korematsu)

A primer I wrote a few years ago on reading through Supreme Court decisions

Posted in Law and justice, News and politics | Tagged , , , , , , , | Leave a comment