Superman and the Rule of Law

This month (June 2013) marks the 75th anniversary of the first appearance of Superman in Action Comics #1.  Although he has been imitated many times, Superman, a/k/a Clark Kent, the surviving son of the exploded planet Krypton, remains the archetype of the comic book superhero.  Literary critics and cultural theorists as noted as Umberto Eco and Scott Bukatman have long ruminated on his significance. (If you doubt this, see Eco, “The Myth of Superman,” Diacritics, Spring 1972; Scott Bukatman, Matters of Gravity (2004).)

For most of the past 75 years, Superman has been held up as a symbol of the fairness of the American system.  After all, at least since the debut of the Adventures of Superman television show in 1951, he has been committed to fighting for “truth, justice, and the American Way.”  However, upon closer analysis, the relationship between Superman, justice, and law has never as straightforward as it appeared in the middle of the twentieth century.

To begin with, in his earliest comic book appearances in the late 1930’s and early 1940’s, the Man of Steel usually operated more as a vigilante than a law enforcement official.  Although he once emphasized the importance of formal legal procedures while staring down a lynch mob, in confrontations with corrupt public officials, racketeers, wife-beaters, gangsters, and wartime profiteers, the early Superman was much more direct in his efforts to see that justice was done.  When an innocent man was wrongly convicted, Superman, like the heroes of western movies, had no reservations about interfering with the judicial process to make sure that justice was done.

In these early years, Superman was quite willing to intimidate and even use the threat of being hurled off the top of a tall building to force wrong-doers to come forward and admit to their crimes.  Sometimes, it appeared that he was inflicting the punishment himself.  Although Superman is never shown actually killing anyone in the early comics, he frequently attacked his opponents with such physical force that they must have been severely injured if not killed as a result.  Rather than simply stand stationary and watch bullets bounce of his chest (as he would do later), he would teach wrongdoers a lesson by picking them up and hurling them across the room where they smashed into an unmovable wall.  This Superman clearly placed ideas of popular justice ahead of legal niceties.  (In Action Comics #1, one of the bad guys is a United States Senator, and Superman clearly shows no special respect for the office.)

During World War II, Superman began to change.  For instance, he sold war bonds, which was not a very vigilante thing to do.  The postwar Superman was also different in his approach.  His focus increasingly became more on the apprehension of criminals than the elimination of injustice.  He was less a righter of wrongs than a defender of the established order.

After 1940, the costumed-crime fighter took an oath never to kill anyone or anything, and he dutifully allowed wrong-doers to wear themselves out trying to overpower him, before arresting them and turning them over to the police.  We never see Superman testifying in court, but we are led to believe that the perpetrators he captured were always convicted and sent to prison.  (The frequency with which his arch-nemesis, Lex Luthor, escaped from prison must have given Superman some doubts about the efficacy of the criminal punishment system on which he was relying.)

During the Cold War, the idea that “justice” and the “American way” might lead to two separate results was not seriously entertained in the world of Superman comics, and the Man of Steel worked hand-in-hand with presidents and world leaders to advance the same pro-American agenda.  However, that equation began to break down in the late 1960’s as comic books sought to be respond to the upheaval in American society by becoming more “relevant.”  In a telling exchange in 1968 with fellow Justice League of America member Green Arrow, who had grown a beard and clearly felt differently, Superman argued that superheroes should not act based on what they thought to be just, but that they should commit themselves to enforcing the law.  (Justice League of America #66, Nov. 1968.)

In 1968, that was an unbelievably uncool thing for a hero to say, and it clearly identified Superman as a defender of the “establishment,” and probably, the “military industrial complex” as well.  At this exact moment, Batman was rediscovering his Dark Knight roots and Spiderman, a product of DC’s main competitor Marvel, was discovering that youthful superheroes could have personal problems of the sort never imagined by Superboy in 1930’s Smallville.  Although he suddenly seemed unbelievably square, Superman’s baby boomer fans ultimately forgave him for his stodginess.

As a kid in the 1960’s, I was vaguely aware of this contradiction between Superman, the free-lance doer of justice, and Superman, the symbol of the priority of the rule of law.  Between 1962 and 1966, during the so-called “Silver Age” of American comics, I was a devoted reader of Superman comic books in all their manifestations—Superman, Action, Superboy, Adventure, Jimmy Olsen, Lois Lane, World’s Finest (where he teamed with Batman), and Justice League of America (where he was joined by eight, and then nine, other superheroes).

Somewhere around my fourteenth birthday, I suddenly “outgrew” the urge to stay immersed in that world, but ever since I have been fascinated by the Superman character and his seemingly unshakeable appeal.  Although I stopped reading the magazines—I needed the money for other interests—I would periodically pick up a comic book at a newsstand and try to quickly catch up with what was going on with Mr. Kent.  Because of his continued popularity, I have been able to follow, more or less, the goings on in the life of the heroic Kryptonian.  I also had great fun introducing my own children to Superman and the other DC superheroes of my youth in the 1990’s.

On the whole, I think that it is the original Superman that most appeals to us as citizens.  Like the classic western hero, Superman rode into town (i.e., crashed on our planet) unexpectedly and eventually used his superior powers to bring down the forces of evil that were too powerful for ordinary people to deal with.  That’s the hero that Americans wanted in the 1930’s and the 1940’s, and the hero that we have wished for ever since.

It is not the resolute defender of the status quo that Superman became in the 1950’s and 1960’s that appeals to us, but the seeker of justice who respects the law, but who also knows that there are times when the law must be ignored to ensure the triumph of right.

That this sounds vaguely fascistic is just one of the many interesting aspects of the Superman phenomenon.  If you are interested in more sophisticated theorizing on the cultural significance of Superman and superheroes, I recommend Jason Bainbridge, “’This is the Authority. This Planet is Under Our Protection’ – An Exegesis of Superheroes’ Interrogations of Law,” 3 Law, Culture and the Humanities 455–476 (2007).  Bainbridge is an Australian culture studies scholar who currently teaches at the Swinburne University of Technology.  For the history of Superman as a character and a cultural phenomenon, I recommend Larry Tye’s recent Superman: The High-Flying History of America’s Most Enduring Hero.

Continue ReadingSuperman and the Rule of Law

Habeas Roundup: SCOTUS (Slightly) Eases Petitioners’ Paths

The U.S. Supreme Court has issued a flurry of habeas corpus decisions in the past two weeks.  The habeas petitioner won in two of the cases and lost in the third.  There are no blockbusters in the group, but habeas fans may find hope in two of the decisions that long-awaited breakthroughs may be in the works.

One that will be welcomed by habeas fans is McQuiggin v. Perkins (No. 12-126).  Perkins was convicted of murder in state court, with the judgment becoming final in 1997.  More than eleven years later, Perkins filed a federal habeas corpus petition, alleging that he received unreasonably poor representation by his trial counsel.  The petition plainly violated the one-year statute of limitations for habeas petitions, but Perkins sought to get around the statute by presenting evidence that he was actually innocent of the crime of which he was convicted.  The Supreme Court has long recognized that actual innocence is an exception to the procedural default rule, which normally bars federal courts from considering habeas claims that were not timely raised in state court.  Perkins argued that there should also be an actual-innocence exception to the statute of limitations, and the Supreme Court agreed in a 5-4 decision.

Does this new exception threaten to eviscerate the statute of limitations?  

Continue ReadingHabeas Roundup: SCOTUS (Slightly) Eases Petitioners’ Paths

Civility in the Courtroom

It seems like the more of a digital society we become, the less of a civil one we are. People are on their devices constantly — while wandering the grocery store, in the middle of a movie at a theater, during dinners. How many times have you seen a group of people out and noticed that all of them are on their phones? While the source of the problem is debatable (maybe phones and tables aren’t to blame), there can be no dispute that rudeness and incivility is on the rise.  It is front and center in the national political discourse, and of course, Wisconsinites need only look as far as the Supreme Court or the Milwaukee County Sheriff to see first-hand examples.

But when I think about civility in the practice of law, it’s not the lawyers who are the problem; it’s the judiciary. I have never had opposing counsel question whether I was being candid, refer to me as intellectually dishonest, or tower over me and yell at me in the middle of hearing. All of those things have happened to me at the hands of members of the court. And how to deal with that is not something anyone ever teaches you in law school.

Judges do not have it easy. They have exploding caseloads and fewer and fewer dollars every year to deal with them. But at what point did the convenience of the court’s calendar start not just to overshadow the rights of the defendants and the needs of the victims and witnesses, but to completely consume it? Doing anything to disrupt the court’s calendar — whether it be by filing a motion requesting an evidentiary hearing, seeking an adjournment, or (gasp!) a defendant who actually exercises his right to a trial — causes a meltdown.

Recently, while waiting for my case to be called, I watched a judge grill a defendant at his final pretrial hearing about why he wanted a trial. “What is it you think your lawyer can do for you?” the judge asked, reminding the defendant that he had already confessed. But how does the judge know that? Because the state alleged it when the parties were discussing witnesses? There are lots of reasons people confess, if that is in fact what he did. And so what if he did confess; maybe his defense wasn’t that he didn’t do it, but that he was privileged to act in a particular way. I have no idea — I just saw a five-minute final pretrial hearing. But I was outraged that the defense attorney stood silent and let his client be questioned. The answer to the judge’s question is simple: the client wants a trial so he gets a trial. Why should never figure into it.

That sort of questioning has no place in a courtroom. It’s abhorrent. It’s unconstitutional. It’s uncivil.

Judges are under enormous pressure, but so is everyone else. A defendant exercising his rights by actively defending against the serious charges against him, should not be the cause of incivility. It should be celebrated.

Continue ReadingCivility in the Courtroom