Posted by A. M. Hamilton on Tue Feb 26 2013
We are familiar with the motif of the trial court attorney spinning a compelling story about the facts of a case, and often the best story wins. To say that legal reasoning at the appellate level about questions of law often involves story-telling by judges, however, might strike one as odd–and yet it’s something they tend to do in controversial cases, and in a way that should concern us.
For example, in Brown v. Board of Education, the Supreme Court appealed to a historical narrative of education in order to reach its unanimous decision: “[w]e must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.” The story of education was key. In fact, the Court’s mention of the detrimental psychological effects of segregated schools on children only made sense in reference to the purpose of education as understood historically.
But why does it matter? The foremost philosopher of narrative, J. David Velleman of NYU’s philosophy department, argues that narrative closure is not always logically connected to events preceding it, but serves the story by providing emotional satisfaction. He argues that the understanding conveyed by the narrative form of historical discourse “is not an objective understanding of how historical events came about but a subjective understanding of how to feel about them.”
Velleman writes that “[h]aving made subjective sense of . . . events, by arriving at a stable attitude toward them, the audience is liable to feel that it has made objective sense of them, by understanding how they came about.”
The most obvious genre used by judges is the law as achievement narrative, or a narrative in which the characters are on a quest to attain a certain state of things different from where we started. Familiar examples of quest narratives are the Arthurian grail legends and Jason and the Golden Fleece. Most Hollywood blockbusters fall in this category.
In one of the most recent, famous Supreme Court opinions–Seattle Schools, in which the Court held it was unconstitutional to categorize students based on their race, even for purposes of adding diversity to schools in which housing patterns would more or less have meant default segregation–Justice Kennedy began by appealing to the purpose of public education, much in the vein of Brown: “[t]he Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all.” Then he moved to appealing to the goals of the founding fathers: “Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. . . . our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain.” Justice Kennedy concluded with an appeal to personal identity, claiming that under the Constitution, “the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.”
He had an achievement narrative of the individual and of the common law in mind, such that common law should allow for the best opportunity for the citizen. The tradition he describes is one whose main concern is therefore one of achieving the best society possible, which is one in which individuals can flourish, and this requires a prohibition of racial pigeonholing even for the most noble causes. There is an ideal world that the founders and drafters of the Constitution had in mind, and it is the purpose and function of the common law to continue on this quest for a more perfect union–this quest is what gives common law, and the courts, their legitimacy.
Another genre in play is the return narrative. More famous return narratives include The Odyssey and The Wizard of Oz. Justice Scalia frequently employs this genre. He and other originalists argue that the legitimacy of the common law derives from its fidelity to the original meaning of the statute or amendment. Originalism insists that at a given point in time “We the People of the United States” can “ordain and establish” a fundamental and lasting framework of government, and that the crucial task in any system of constitutional adjudication is to maintain that fundamental law. A necessary bond exists between legitimate judicial decision-making and maintaining the original understanding, such that the closer we are to Ithaca, the better and more legitimate the common law becomes.
One of the most famous examples of originalist interpretation is Scalia’s reading of the Eight Amendment’s prohibition on “cruel and unusual punishment.” In his now famous dissent to the majority opinion in Roper v. Simmons, which held it was unusual and therefore unconstitutional for Missouri to extend capital punishment to minors, Scalia argued that the majority’s argument of evolving standards of decency marking the progress of a maturing society (in regard to the Eight Amendment), would be to “crown arbitrariness with chaos.”
Scalia went on to argue in his Roper dissent that allowing courts to reinterpret the Eighth Amendment “whenever they decide enough time has passed for a new snapshot” leaves this Court’s decisions without any legitimacy, because the “evolution” of our Eighth Amendment is no longer determined by objective criteria. To allow courts to update the Eighth Amendment as needed “destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials.” Scalia concluded that only reasonable interpretation was whatever was considered “cruel and unusual” at the time the Eight Amendment was written.
What makes these cases remarkable is that the Court could have gone about its reasoning in a different way, but it chose to craft a story. The characters are the people of the United States and the judges are the story-tellers, if not from start to finish, certainly of a significant portion in a chain novel. Velleman’s observation about the emotional closure that narrative provides seems correct but troubling when applied to law. One might argue that the fact that one narrative provides more emotional satisfaction than another does not give us any objective reason for believing it, but it might give us a subjective reason for accepting it, all other things being equal.
My hunch is that what the court is doing by employing the use of narrative is reconciling incommensurable values. In each of these instances, and the countless others like them, the Court was presented with genuinely hard cases, pointing in two, incommensurable directions, and the reasoning takes a narrative turn, such that the best completion of the narrative is the decisive factor for the Court’s decision. In Brown it was showing the long-existing importance of education in our nation’s heritage, in Seattle Schools it was the importance of dignity, and in Roper it was about the importance of the past. So instead of balancing the conflicting values in such cases overtly, the Court resorts to telling a story, whether it knows it or not, for the sake of imposing a feeling of closure and legitimacy on a controversial topic. But is telling a tale about the law really what judges should be doing? How acceptable is this practice? That’s another story.
Photo credit: UNE Photos, Creative Commons