by Barry Goldman
When I was a little boy my parents had a
book that convulsed me with giggles. It was a collection of cartoons by Abner Dean called What Am I Doing Here? I couldn’t read, and I didn’t understand what was happening in the pictures, but the people in the cartoons were naked! You could see their tushies! It just cracked me up.
One day the book disappeared. I think my friend Neal from down the street boosted it, but in any case I forgot about it for many years. Then one afternoon when I was about 20 I came across it again in a used book store. I remember the feeling distinctly. The drawings were strangely familiar, and they were deep. Some of them made me shiver with the shiver of cosmic deepness. Readers who were once 20-year-old pot smokers will know what I mean. But the man wanted $12 or some such impossible sum, and I had to leave it in the store.
I was in another used book store 25 years later, and I came across it again. I recognized the cover and eagerly paged through the cartoons. This time they struck me as silly. “Sophomoric” was the word that came to mind. I didn’t see any reason to buy it.
Another 25 years has gone by, and there was an ad for a re-issue of What Am I Doing Here? in the New York Review of Books. It said:
With an inimitable mixture of wit, earnestness, and enigmatic surrealism, Dean uses this most ephemeral of forms to explore the deepest mysteries of human existence.
I ordered a copy. (Drumroll, please.) Nothing. Not funny, not deep, not clever. Nothing. An entirely forgettable book of entirely forgettable cartoons.
So which is true? Is it wet-your-pants funny, chillingly deep, or just silly? The question, as the Buddha used to say, “is not rightly put.” I experienced the book in all of those ways, and all of my experiences were perfectly valid. “But what is it really?” is not a proper question. I wasn’t wrong when I thought it was hysterically funny, and I’m not wrong now that I think it’s silly. The category of correctness or incorrectness doesn’t apply.
That’s not to say there is no such thing as aesthetic judgment. There are reasons to think a work of art is good or bad, and there are experts who can explain those reasons. Lawrence Weschler is a personal favorite. He knows how to look at paintings and talk about them in a way that adds layers of previously unimagined depth. Weschler brings a huge amount of background knowledge to the experience of a work of art. Reading him is an intellectual joy. He is informed, he’s trained, he’s exquisitely sensitive. But it would be a mistake to say that Weschler’s judgments are correct. Facts are correct or incorrect. Judgments cannot be either. They can be more or less informed, more or less intellectually provocative, but they cannot be correct or incorrect.
All of which brings me, at last, to the subject of this essay. I want to talk about legal judgment. And I want to say the same thing about it that I just said about aesthetic judgment: the category of correct and incorrect does not apply.
The textualist, originalist justices on the Supreme Court do not agree. They believe the meaning of the Constitution was fixed at the time of its adoption, and that deviations from that original meaning are “egregiously wrong.” The late Justice Antonin Scalia, one of the leading lights of originalism, put it this way in an interview with Nina Totenberg on NPR:
“If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you’ve eliminated the whole purpose of a constitution. And that’s essentially what the ‘living constitution’ leaves you with.”
Supporters of originalism believe it restrains the court from imposing whatever reading the majority of justices happens to prefer. There is something appealing about this notion. The idea is the Law is above the sordid to-ing and fro-ing of politics. The law is the law. No one is above the law. We are a government of laws, not of men. Part of the appeal comes from the fact that the Warren Court of living constitutionalists felt free to rule upon not just the rights enumerated in the Constitution but also found that:
the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
Once the Court began to find penumbras formed by emanations, it was off to the races. First the right to contraception, then the right to abortion, then gay sex and same sex marriage. One shudders to think what could come next.
Originalism was supposed to be the antidote to this. Originalist judges, the story goes, do not make law, they merely apply it. They simply read the text. No emanations. No penumbras. No political agendas. Text.
Erwin Chemerinsky is the dean of the law school at the University of California, Berkeley. His 2022 book Worse Than Nothing: The Dangerous Fallacy of Originalism defends the opposite view:
Constitutional law is now, always has been, and always will be largely a product of the views of the justices. The conservative quest for value-neutral judging is a futile one; their claim that they have achieved it through originalism is nonsense.
I agree with Chemerinsky that originalism is incoherent, that it is a fig leaf for the personal policy preferences of conservative justices, and that it is cynically invoked or disregarded as required to advance those preferences. I enthusiastically recommend his book, and I hope the reviewer is right who declared it to be “the definitive obituary of originalism.” But I would go further. It is not the case that the originalists are wrong and the living constitutionalists are right. Both sides act as though The Law is written in some Great Book in the Sky, and a judge’s job is to look it up and apply it. They just disagree about what the Great Book says. That’s not how it works. The late legal scholar Anthony D’Amato understood this. He wrote:
Any judicial opinion is a carefully constructed exercise in legal rhetoric designed to convince the reader that the judge had no choice, that “the law” determined everything.
Law reviews around the country are filled with the modern equivalent of medieval scholasticism designed to accomplish just that. Actually, the matter is far simpler than either side makes it appear.
Let’s take a case described by Robert Reich from back in his early days as Bill Clinton’s Secretary of Labor. Reich described the incident in his Substack about two years ago.
Child labor laws bar fourteen-year-olds from working past 7 pm on school nights. Weeks before I became secretary of labor, a vigilant Labor Department investigator discovered that the Savannah Cardinals, a Class A farm team of the Atlanta Braves, had hired 14-year-old Tommy McCoy to be their batboy. On balmy evenings extending beyond sunset, Tommy selected each player’s favorite bat and proudly delivered it to him in the batter’s box. Next morning, Tommy went to school.
The investigator threatened the team with a stiff fine. The team did what it had to do: It fired little Tommy.
Tommy liked being a batboy. His parents were proud of him. The team was fond of him. The fans loved him. As long as anyone could remember, every kid in Savannah had coveted the job. Tommy did well in school.
But now little Tommy was out of the best kid’s job in town.
Reich told his staff to drop the case. They said the law is the law. They said dropping it would look like caving to public pressure or selective prosecution. They said it would undermine staff morale.
Reich directed them to drop it anyway on the grounds that it was stupid. I’m with him.
There is merit in consistency, and there is merit in the idea that the public is entitled to advance notice of what is permitted and what is not under the law. There is merit in the idea that judges should not be making it up as they go along. But there is greater merit in what has come to be known as the Obama Doctrine: Don’t do stupid shit.
I understand that reasonable minds can differ on the question of what is stupid. I accept the risk. In my view, the cost of a doctrinaire adherence to a set of rules – any set of rules – is worse. Even Scalia recognized this. In that same interview with Totenberg he said, “I am an originalist. I am a textualist. I am not a nut.”
“The law is a fact” as Professor D’Amato said. The written law, precedent, and case law is a fact to be considered along with the other facts in the case. That the law should be followed is, perhaps, a “rebuttable presumption.” But it is not dispositive. If the law calls for something stupid, then it should not be followed. Here is more from D’Amato:
Justice, I argue, is what law is for; justice is what lawyers should do; justice is what judges should render. “Law” is nothing but a set of tools – admittedly complex and intellectually engaging. But we should not get so caught up in the intellectual interest of law that we forget that law in itself cannot solve human problems.
“Justice justice shalt thou pursue” it says in Deuteronomy 16:20. It doesn’t say “Consistent enforcement of the written rules shalt thou pursue.” That would be stupid.