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Reason in Law
By Lief H. Carter, Thomas F. Burke
The University of Chicago PressCopyright © 2016 The University of Chicago
All rights reserved.
What Legal Reasoning Is and Why It Matters
I have grown to see that the [legal] process in its highest reaches is not discovery, but creation.
— Benjamin N. Cardozo
They ain't nuthin' until I calls 'em.
— Umpire Bill Klem (attributed)
An Overview of Law and Politics
In late June 2013, millions of Americans eagerly awaited the Supreme Court's decision about whether the U.S. Constitution recognized the marriage of Edith Windsor to Thea Spyer, a same-sex couple who had been partners for forty-two years. Edith and Thea had been married in Canada in 2007, and their marriage was considered legal in the state of New York, where they lived. But under a U.S. federal law, the Defense of Marriage Act, the federal government refused to treat Edith and Thea as legally married. This had powerful consequences: when Thea died in 2009, she left behind a large estate, and because Edith was not recognized as Thea's spouse, she had to pay more than $300,000 in inheritance taxes. This was just one of the hundreds of ways in which the Defense of Marriage Act disadvantaged same-sex couples, even those like Thea and Edith who were recognized as legally married by the state in which they resided. Edith's lawyer, however, argued that she shouldn't have to pay the tax because the Defense of Marriage Act was unconstitutional. The lawyer argued that the law violated the Fifth Amendment of the U.S. Constitution, which guarantees fundamental liberties, including, the lawyer argued, the right to marry whomever one chooses. If the justices of the Supreme Court agreed with Edith, it would affect not just her massive tax bill but also the rights of men and women across the nation. Of course, for religious conservatives fighting for the "traditional marriage," the decision was equally consequential. Whatever the Court ruled, it would deeply disappoint many Americans.
A little more than a decade earlier, in 2001, a British court considered a more obscure but also very divisive matter: what to do about conjoined twin girls, Jodie and Mary. The two were joined at the pelvis, though each had her own organs and limbs. Doctors believed that both girls would eventually die if they were not separated. Separating them, however, would kill Mary, the weaker twin. The twins' parents, devout Roman Catholics, believed that it "was not God's will" that one child die to enable the other to live because "[e]veryone has the right to life." The hospital in which the twins were treated, however, believed that failing to separate the twins would violate Jodie's right to life. Despite the parents' wishes, the hospital sought legal authorization to perform the separation, arguing that the operation would count under British law as saving Jodie's life, not as murdering Mary. The judges in the case faced an awful dilemma. If they sided with the hospital, they would be overriding the rights of the parents and the arguments of religious leaders, who argued that the hospital was trying to seek authorization for the murder of Mary. If they sided with the parents, though, they might be putting Jodie's life in jeopardy.
More than twenty years before the case of the conjoined twins, and back in the United States, a case of murder raised another complex legal issue. On August 9, 1977, a patron of a bar, Happy Jack's Saloon, saw a confrontation in which Darrell Soldano was being threatened. The patron, hoping the police could quell the fight, ran to the nearby Circle Inn, told the bartender about the threat, and asked that the bartender call 911. The bartender refused, even refusing to let the patron make the call himself. Back at Happy Jack's, the confrontation escalated and Darrell Soldano was shot dead. A lawsuit sought damages on behalf of Soldano's young son, not from the shooter but from the Circle Inn, blaming the bartender who had refused to call 911. The lawsuit contended that if the call had been made, the police could have stopped the fight and Soldano would not have been shot. The restaurant, however, argued that its bartender had no duty under the law to call 911. As in the other cases, the judges in this lawsuit had to declare one side a winner and the other a loser: the son left without a father, or the Circle Inn restaurant, which considered itself blameless for Soldano's death.
Every year courts decide millions of such disputes. Most, like the Happy Jack's case, don't receive much media attention; a few, like the same sex-marriage case, become worldwide news. But however famous or obscure, for the participants — the son of a murdered father, a restaurant owner worried about a huge liability bill, parents of children in a medical crisis, gay men and lesbian women hoping to be married — such lawsuits are of enormous consequence. These people's futures, sometimes even their lives, lie in the hands of judges. How should the judges decide their fates?
Laypeople unfamiliar with the legal process tend to assume that some simple legal rule — a statute or a constitutional clause or a judicial precedent — can settle the matter. But digging beneath the surface of these three cases, the rules turn out to be ambiguous. The Fifth Amendment to the Constitution, one of the rules in the same-sex marriage case, merely states: "No person shall ... be deprived of life, liberty, or property, without due process of law." What does this have to do with same-sex marriage? There were a couple of previously decided cases interpreting this phrase to prohibit the government from discriminating against minority groups, but how far did that principle extend? In the case of the conjoined twins the rules were equally murky. Some of the judges cited Airedale v. Bland, a case in which a hospital was authorized to stop life-sustaining support measures for a young man, Tony Bland, who was in a persistent vegetative state. But was Mary, the weaker twin, really in the same position as Bland? And wasn't a surgical separation a more violent mode of causing death than simply withholding treatment? In the case of Happy Jack's the previously decided cases were also no sure guide. There were cases in which courts had held individuals culpable for refusing to help others, like the Circle Inn's bartender who refused to make a 911 phone call. In all the previous cases, however, there was some kind of "special relationship" between the victim and the defendant. Was there really a special relationship between the Circle Inn's bartender and a stranger asking for help? Or was the existence of a special relationship in the previous cases really so important? In each case the rules were ambiguous, and judges could easily interpret them to the benefit of either side. Indeed, this is one of the reasons all three of these cases were so sharply contested — the law was unclear, so the parties needed the judges to resolve their dispute.
If rules by themselves couldn't resolve these lawsuits, perhaps the judges could consider instead the moral values at stake in each dispute. From this perspective courts should serve as a kind of moral forum in which judges articulate society's most deeply held values and interpret the rules so as to advance those values. But in each of the cases there were several such values, and the competing values pushed the judges in different directions. Gay men and lesbian women claimed the values of freedom and equality, but cultural conservatives pointed to the value of the traditional family and hundreds of years of moral and legal prohibitions on homosexual conduct. Jodie and Mary's parents invoked their rights to make decisions for their children without interference from others, and they argued for the sanctity of the life of Mary; the hospital cited the right to life of Jodie. The lawsuit against the unhelpful bartender rested on a duty to help one's fellow human being; the restaurant owner could equally cite the value of freedom to do as one chooses, including the freedom not to help. How should judges choose among these competing, deeply held principles?
Making things even more difficult for the judges were the factual disputes in the cases. How could the doctors know for sure that Jodie and Mary couldn't survive together, or that Jodie would live if separated? How could anyone know if calling 911 would have prevented the escalation of the fight that killed Darrell Soldano? And there were also broader factual questions that went beyond the particularities of each case. When parents and doctors disagree about complicated medical treatments for children, are parents sophisticated enough about the science involved to make informed choices? Would expanding the duty to help others really make society more safe — or would it simply lead to more lawsuits against blameless bystanders wherever trouble erupted? Would the recognition of same-sex marriage really affect the well-being and robustness of the traditional family, as cultural conservatives claimed? What evidence should judges rely on in assessing this question?
This book describes how judges, despite the ambiguities and dilemmas that lurk in every corner of life and law, can use good legal reasoning to resolve difficult disputes. Laypeople, the people for whom we have written this book, may think that legal reasoning is so complex and technical that only those with professional training can possibly understand it. We believe, however, that laypeople with no such background are fully able to become sophisticated evaluators of legal opinions — judges of judging — and in the process, smarter and more engaged citizens. Indeed, we believe good citizenship requires some understanding of how legal reasoning works, because law, far from a dusty, dry, technical topic, is fundamental to politics. Legal reasoning serves simultaneously as the velvet glove covering the fist of governmental power and as the sincerest expression of a community's ideals of justice. To understand legal reasoning is to understand the rule of law itself.
Chapter 6 and appendix B explore more fully the relationship between law and politics, but we begin with three observations about the many ways in which they are intertwined.
The Law Is All around Us
When President Obama in a May 2013 speech defended his policy of using drones to kill people his administration had determined to be enemies of the United States, critics argued strenuously that the policy violated international law. Because no world court had the power to resolve the matter and enforce its judgment, that legal issue remained just another political shouting match. Law becomes "the rule of law" only when courts have the power to resolve legal claims or when people, knowing that powerful courts can step in to settle matters for them, "bargain in the shadow of the law."
The political system of the United States, unlike the international system, incorporates a powerful and independent judiciary. Our nation thereby claims to honor the rule of law. Alexis de Tocqueville wrote long ago that "there is hardly a political question in the United States that does not sooner or later turn into a judicial one." The daily flow of news reports regularly reaffirms Tocqueville's observation:
Civil rights groups and the Obama administration in 2014 challenged a Texas law that required voters to have a government-issued photo identification in order to cast a ballot. The group argued that because many minority voters lack such identification, the law would disproportionately block them from voting. A federal district court judge agreed with the challenge, concluding that Republican governor Rick Perry and the Republican legislature enacted the law to suppress the "overwhelmingly Democratic votes of African-Americans and Latinos," thus bolstering their party's political prospects. The judge ruled that the law violated both the Voting Rights Act and the Twenty-Fourth Amendment to the Constitution, which bars a "poll tax," a fee assessed for the privilege of voting; the judge concluded that the fees associated with the photo identification cards required by the law amounted to a poll tax. A federal appeals court, however, allowed Texas to proceed with the photo identification requirement for the 2014 election, and the U.S. Supreme Court refused to hear an appeal of that decision.
In 2012 the struggle over President Obama's major health-care reform law, the Patient Protection and Affordable Care Act (Obamacare), reached the Supreme Court, where Obamacare opponents argued that the law's requirement that individuals buy health insurance went beyond the powers granted to Congress by the Constitution. On June 28, 2012, the Court by a 5–4 vote upheld the constitutionality of Obamacare, ruling that the penalty assessed against those who would fail to buy health insurance could be considered a tax, and thus within Congress's taxing powers.
The South Carolina Supreme Court on November 12, 2014, declared that the state was not providing a "minimally adequate" education to all students as required by the state's constitution. The Court noted that in most of the school districts covered by the lawsuit, test scores revealed that more than half of students were failing to perform at even a minimum level for their grade. The Court by a 3–2 vote directed the state to address the problem. Dissenting from the decision, Judge Kittredge argued that the Court was stepping beyond its bounds and becoming a "super-legislature." He pointed out that words of the state constitution merely required the state legislature to create a "system of free public schools" and did not stipulate that the education received achieve any particular standard of quality.
An inmate awaiting execution on Texas's death row, Charles Hood, learned years after his initial conviction that the prosecuting attorney in his case and the judge who sentenced him to death were having a sexual affair at the time of his trial. Each was married to another at the time and had vigorously denied the affair. Hood argued that the romance raised legitimate doubts about the impartiality of the judge, and so violated his right to a fair trial under the Constitution. A Texas appeals court, however, denied his claim.
The Rule of Law Keeps the Peace
Many people, no doubt, react to such politically charged cases by comparing the legal result against their own political beliefs. Liberals and civil rights advocates critical of the Texas voter identification law excoriated the U.S. Supreme Court for allowing the law to stand; Republicans in Texas praised the result. Liberals cheered the Supreme Court's decision upholding Obamacare; conservatives decried it. But if you stop and think about it, judging a legal result simply in terms of one's own sense of right and wrong won't do. The whole point of the rule of law is to set standards of governance that transcend individual beliefs. If all we bring to law and politics is a determination that our values should prevail, we are no better than religious and political fundamentalists who insist that their moral scheme justifies destroying other incompatible moral systems. The claim of moral righteousness and superiority has driven many of our species' worst atrocities, such as the Holocaust, the genocide of American Indians, and the killing of millions of "enemies of the state" by various communist regimes.
So the rule of law substitutes legal reasoning for moral righteousness. In the sample of cases in the previous section, the legal reasoning question is not whether we like the result but whether the judge has given reasons we find trustworthy. If this distinction seems too abstract, think of an organized sport or game, one with umpires or referees. You may root passionately for one side, but when a referee's call goes against your team, you don't automatically condemn it. You consider whether you trust it, whether the facts on the field fit the call. It is indeed extraordinary that sports and games, contests among emotionally charged people whose self-respect and wealth may be on the line, remain for the most part civil and peaceful.
The Critical Importance of Judicial Impartiality
Reflect a bit further on your experience of sports referees and you will soon realize that a critical call against the home team does not normally turn a peaceful home crowd into a rebellious mass of frothing maniacs (who would throw beverage bottles at the refs if glass containers were still allowed in the stands). Only blatantly erroneous calls and, worse, a pattern of wrong calls that suggests a bias against the home team cause fan rage. The impartiality of legal judges is as necessary for political peace as the impartiality of referees and umpires is to keeping peace in the stands.
Excerpted from Reason in Law by Lief H. Carter, Thomas F. Burke. Copyright © 2016 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Table of ContentsForeword by Sanford Levinson
Chapter 1: What Legal Reasoning Is and Why It Matters
Chapter 2: Change and Stability in Legal Reasoning
Chapter 3: Common Law
Chapter 4: Statutory Interpretation
Chapter 5: Interpreting the U.S. Constitution
Chapter 6: Law and Politics
Appendix A: Introduction to Legal Procedures and Terminology
Appendix B: A Theory of Law in Politics: The Case of Terri Schiavo