by Jerry Cayford
“Yertle the Turtle,” by Dr. Seuss, is a parable for our times. That statement may seem banal to some, maybe even insultingly obvious. But I think the elements that make it so relevant are not the obvious ones. Like any great parable, it suggests more than it says, and its adaptability to fresh perspectives is what keep its so-so-simple surface interesting.
The obvious current analogy to Yertle is, of course, President Trump: the greedy, arrogant Turtle King—“I’m Yertle the Turtle! Oh, marvelous me! For I am the ruler of all that I see!”— lusting to expand his kingdom by annexing Greenland and the Panama Canal. This fits with conventional readings of the story, which focus on questions of morality and treat the righteousness of Mack’s resistance to injustice as the heart of the story. (It is even used in classrooms to introduce children to thinking about moral issues, for example here). The story is then a children’s tale of good triumphing over evil.
I would change the focus in interpreting “Yertle the Turtle” from questions of morality to questions of power. To me, the plain little turtle named Mack represents resistance to authority. So, I see Mack in the plain little turtle who killed that healthcare executive on the streets of New York. I also see Mack in a powerful judge who is quite the opposite of a desperate killer. We’ll look in some detail at the judge who stopped President Yertle’s assault on the birthright citizenship of babies born to immigrant parents. There are many other Macks in between the killer and the judge on the social scale, all connected by the concept of resistance to authority.
The key question is how Mack gets power. In the story, he gets power almost accidentally, a by-product of a fanciful depiction of society. Totally unrealistic, we say. But my examination of how society’s rules are made and by whom will reveal a picture in which ordinary people do indeed, like Mack, make up the structure itself on which everything rides.
Fortunately, “Yertle the Turtle” is reproduced with full color illustrations here. It’s short, under a thousand words, so those unfamiliar can read this delightful story now, before I spoil it for you. Yertle, king of a happy little pond, decides he is king of all he can see, but he can’t see enough because the rock he sits on isn’t high enough. So he orders turtles to stack themselves up so he can sit higher—on them—and see more. Enjoying this new view, he demands more turtles for a taller stack until he is higher than anything in sight, ruler of all. A plain little turtle named Mack at the bottom of the stack complains about his back, but Yertle orders Mack to shut up and stay in his place. Then the moon rises overhead, outraging Yertle. As he is about to order more turtles to raise him higher than the moon, Mack burps and Yertle falls into the mud.
The story is sweet and the morals are clear. Seemingly, anyway. The rules of turtle society say Yertle must be obeyed. But Yertle abuses his authority and his subjects. Mack petitions politely—twice—for redress of grievances; he asks respectfully for mercy, for rights, for food, but is dismissed harshly and without due process. It’s not fair, and Yertle gets the comeuppance he deserves.
Still, the limits of authority are unclear, both in the story and the world. Mack is never explicitly presented as breaking the rules, and the story does not challenge the rule of law per se. A burp, after all, would seem to be involuntary. At the climax, though, there is a suggestion of rule-breaking rebellion:
[Mack] Decided he’d taken enough. And he had.
And that plain little lad got a little bit mad
And that plain little Mack did a plain little thing.
He burped!
And his burp shook the throne of the king!
There is some ambiguity, then, about the involuntariness of the burp. Nevertheless, the story is not inviting us to equate Mack’s burp with gunning down Yertle in cold blood. It even shows Yertle has survived his fall, sitting now chastened with mud on his head. (The final drawing does, subversively, show Mack sitting on the rock.)
If this story seems like fantasy wish-fulfillment, it is because we see our own world as separating people from power. What little power we think people have is specified, measured, and channeled, especially in elections. If, in the story, plain little Mack did a plain little thing and thereby repaired an enormous injustice and his whole society, well, it’s only because the king’s turtle-stack throne is resting on Mack’s back! We view our real society as quite definitely isolating the formal structures of power from the public at large. This view of power as residing in institutions insulated from the people has a long history, and it is hard not to assume it’s accurate. But I will argue that people are integrated—pell-mell—into society’s power structures, so the tower throne beneath Yertle is a more realistic picture of our world than you would think.
My thesis, then, is that ordinary people of all kinds—from killers to judges—have agency, not only in electing the powerful, who then make things happen for us, but directly and at every point in our supposedly-insulated hierarchies.
Rules for Rules
Rules and their logical structure are the starting point of our analysis. The minimum a rule needs in order to be a rule is a right and a wrong about it. That is, there has to be a difference between following a rule and breaking the rule. (Rules are “normative,” as philosophers put it.) This need for a right way of following and a wrong way (a breaking) immediately generates a venerable logical complication, an ancient problem captured by sayings like “Quis custodiet ipsos custodes?” (“Who will watch the watchers?”). If someone has to distinguish right from wrong rule-following, then someone else has to watch that the first someone does it right. A policeman says you broke some rule; a judge assesses whether the policeman’s judgement of your rule-following behavior is correct; an appeals court judges whether the judge’s assessment was correct; and so on.
A problematic regress appears, with no clear ending, a hierarchical structure of layers for implementing judgment and enforcement of the distinction between right and wrong rule-following. The whole, though, is only as strong as its weakest link: if whoever decides whether the rule has been followed is capricious or corrupt or incompetent, or if enforcement is random or corrupt or trivial, this lack of integrity feeds back down the chain; then, there is no normativity, no right or wrong, in following the original rule. The watcher at the next layer is supposed to correct the one that failed, but that entails ever new layers. Unless this regress stops somewhere, there are no rules, and no rule of law. In the hierarchy of authorities constraining lesser authorities, how can society make sure that the final and highest authority is upholding the rules?
This theoretical problem may only occasionally become a serious practical problem, but we are apparently living through one of those occasions. A wonderful NY Times op-ed by Columbia University professor Suresh Naidu ties our current moment to the “Glorious Revolution” of 1688, which was possibly the most important occasion of Western society grappling with the threat to society of unaccountability at the top. In the Glorious Revolution, the British parliament deposed King James II and brought in his daughter Mary and her Dutch husband, William of Orange, to rule in a new kind of monarchy, subordinate to parliament. It started the long decline of monarchical power in Europe and the transition to “popular sovereignty” (i.e. democracy). In “Columbia’s Administrators Are Fooling Themselves,” Naidu points out the logic (or illogic) of entering agreements that can’t be enforced because the other party is too powerful.
As Naidu recounts, King Charles II (James’s brother and predecessor), refused to pay back money he’d borrowed from London bankers. Consequently, no one would lend money to the British government. When James (a Catholic), succeeded Charles, he claimed “royal prerogative to bypass laws and purge Protestant judges, generals and functionaries.” He lasted only four years. Monarchs behaving badly is more than individual acts of injustice; because of the regress problem, their failure to backstop the power hierarchy threatens to unravel all social authority. The events of 1688 are also known as “The Bloodless Revolution” because when William’s force landed in England, James’s army simply disintegrated. They probably doubted they’d get paid. Likewise, Columbia University has no guarantee that President Trump won’t take its $200 million and then continue his abuse, or demand more.
Naidu presents Columbia’s predicament as the fundamental logical problem that it is:
In economic history, we teach the 1688 creation of parliamentary supremacy as a solution to what economists call “commitment problems.” In the absence of a third party sufficiently strong to make sure all sides stick to their promises, the powerful can renege on the powerless. The powerless, seeing this, wisely choose to not contract with the powerful. Absolutist rulers are victims of their own lack of restraints; a sovereign who is too powerful cannot get inexpensive credit, because nothing stops the ruler from defaulting on any bond.
The rise of parliament worked well, on that occasion: “Parliament would approve only those loans it would be willing to pay back with taxes, enabling deals with creditors now willing to lend.” Notice, though, that substituting parliament for monarch is not really a solution to the commitment problem. After all, better monarchs, such as William of Orange and Mary, might have done just as well as parliament. Furthermore, the justification Naidu offers for parliament is exactly Hobbes’s famous argument in Leviathan for absolute monarchy: the monarch is supposed to be that “third party sufficiently strong to make sure all sides stick to their promises.” (In fact, Hobbes had been James’s tutor some decades earlier, before he became king.) Either way, sufficient strength does not guarantee good behavior.
In principle, replacing one final authority with a different final authority does not touch the fundamental problem. As long as we think that the integrity of society’s rules depends on a hierarchy of authorities, the problem of who watches the watchers is simply insoluble. The regress of authorities reaches some final authority, such as a monarch or a parliament (or a Supreme Court), which is then unchecked. There must be a different way of thinking about it, some powerful influence outside the hierarchy. And there is.
Finding Workarounds
To a different way of thinking, the integrity of rules is protected not by the next authority up the chain but laterally, so to speak, by consensus. The rules depend not only on formal authorities but on the public: what it believes, what it will tolerate, how it behaves. In this different way of thinking, people are not simply spectators, victims, or raw materials, but are agents constantly defining society’s rules. This is the picture (embellished a little) that we get in “Yertle the Turtle”: the government’s power is literally constructed of turtles (people); and when they lose patience, a burp is enough to bring it down.
This Seussian picture, though, is quite alien to our habitual concept of power residing in an insulated hierarchy separate from largely powerless people outside. To break the habit, let’s look at a couple of recent examples, and the role that ordinary people played in each. We’ll look in detail at a judge making a controversial decision, an example that appears at first glance to show the insulated hierarchy in control, but at second glance shows that hierarchy to be surprisingly porous. First, though, we can get a quick idea of this different thinking from a significant turn of events in Los Angeles (NY Times):
In an almost unheard-of move, federal grand juries in Los Angeles have been refusing to indict many defendants whom prosecutors have sought to charge in connection with immigration protests, according to recent news reports. That situation underscored how the courts can work successfully only if people outside of government — jurors and witnesses, for instance — believe that the Justice Department is acting honestly, said Daniel C. Richman, a law professor at Columbia.
The members of the public that staff grand juries fall somewhere between the federal judge and the killer of the healthcare CEO: not the downtrodden but also not hierarchy insiders. In these immigration protest cases, those jurors had more power than merely what the hierarchy doled out.
The next example, the case of the federal judge, is one in which the hierarchy seemingly should have all the power. The Supreme Court straightforwardly set the rules when it drastically curtailed universal injunctions on June 27 in Trump v. CASA, Inc. An injunction is an order a court issues to block some action. It says, “Stop!” and is issued quickly, before details are hashed out. The purpose is to prevent “immediate, irreparable harm” from occurring while the legal issues are being decided, which can take a long time. Ordinary injunctions stop a specific party to a lawsuit from some action, but “universal” injunctions stop that action for everyone in the nation. So, courts used them to stop government policies from taking effect (and causing harm) before their legality was sorted out. You can see the ease with which universal injunctions enabled courts to interfere in government programs. That interference gave the Supreme Court reasons to ban them. The case in hand, though, displays the stakes in this dispute over universal injunctions particularly nakedly.
Trump v. CASA, Inc. concerns Trump’s executive order denying birthright citizenship to some babies born in the U.S. Everyone knows the order is unconstitutional: three lower courts ruled against it and issued universal injunctions, it lost three appeals, and the Department of Justice did not even try to defend it in their arguments to the Supreme Court. What the DOJ did ask the Supreme Court for is freedom from universal injunctions (the three in this case and all future ones), freedom that would give the government the power to implement this denial of birthright citizenship, as well as other illegal policies that will cause immediate harm not reversible when those policies eventually lose in court. The Supreme Court agreed, and if formal authorities were the only authorities, the government would now have that power with this Supreme Court ruling, case closed.
I am slightly overstating the situation to prepare for two different ways of looking at what happened next. Our question, remember, is who really determines what the rules are. Trump v. CASA, Inc. went back to the lower court, with the power to issue universal injunctions now invalidated. It went to the court of a plain little turtle named Mack. Just kidding. It went to Judge Joseph Laplante of New Hampshire, only transformed now into a class action suit called “‘Barbara,’ et al. v. Trump” (“Barbara” being a pseudonym for all unnamed babies denied citizenship by the original executive order). A class, though, has to be certified as a class prior to a judge taking legal action, and it has to meet a set of criteria in order to be certified. Normally, establishing that a class meets the criteria takes considerable time, but Judge Laplante certified the class on the spot on July 17, and issued an injunction that day protecting the whole class from Trump’s executive order. Here’s the trick: what he issued was not a universal injunction (they’re banned) but rather an injunction specific to a certified class (a class constructed, though, to include all relevant babies, so effectively universal).
What happened here? Did Judge Laplante simply and legitimately employ a different legal tool? Or did he actually—and even illegally—bend the law to prevent a greater injustice? The situation is open to either answer, but the second (and more interesting) answer will turn out to be surprisingly elusive.
The best summary I know of the legal ins-and-outs of the case is Mila Sohoni’s July 2 SCOTUSblog post. Sohoni shows that legal insiders clearly anticipated Judge Laplante’s action. Justice Alito predicted that the CAVA decision he signed on to will be “academic.” Supposing our first answer is right, and Laplante simply employed a different legal tool (class actions), then he seemingly just did what the authority hierarchy expected of him, showing it to be smoothly in control and following rules it has made. Everything is tied up neatly.
But Sohoni explains and elaborates on Alito’s “academic” comment with a puzzling and suggestive further quotation: “As Justice Gorsuch wrote in dissent in Gundy v. United States, ‘When one legal doctrine becomes unavailable to do its intended work, the hydraulic pressures of our constitutional system sometimes shift the responsibility to different doctrines.’ So it will be here.” This metaphor of pressure coursing around the legal system looking for an outlet, a weak point to escape, feels inconsistent with a formal hierarchy. That distant, insulated hierarchy of our habitual picture proceeds by calm, orderly, well-defined steps. But if you let that “hydraulic pressure” nag at you a bit—where would it come from? and what about “intended work”?—a different, less rigid, less orderly picture emerges. It’s a picture of forces on a mission, willing to take ad hoc measures to achieve their goal. It is also consistent with a system needing an escape from the regress problem, needing protection for the integrity of its rules not by one more layer of authority up the chain but with lateral reinforcements from outside. All around, it is a picture more suggestive of our second interpretation of what Laplante did: bend the law to prevent a greater injustice.
Erasing Fooprints
Let’s refine our question of who decides the rules: recalling rules’ normativity, what we really mean by the question is, who decides what will count as following a rule or breaking it. Judge Laplante has decided that certifying a class immediately is following the rules that govern class actions. That much is clear. Suppose, now, he actually believed he was bending the rules of class actions in order to prevent the undermining of the rule of law that he foresaw would follow if nothing replaced universal injunctions. I don’t flatly say the second interpretation is correct, because I am going to argue that there will be no way to say what the law was before his decision (so no way to know it got bent). Bear with me.
Certainly many will claim Laplante has bent the law. The DOJ will probably argue in future appeals that certifying a class without a lengthy determination that it meets required criteria is a gross violation of legal rules. Laplante will be described as a rogue judge who has twisted class action requirements to suit his own illegal agenda. Can he reply that he bent the law and was right to do so? No, a judge can’t really say that. He has to stand by his ruling and claim he has followed the law. And if he couldn’t make a plausible argument that his decision was legal, he would not have made it. (Furthermore, he did delay his injunction for seven days to allow the DOJ time to appeal his order before it took effect; they did not do so, which they certainly would have if Laplante’s decision was obviously indefensible.) For Laplante and those who support his decision, then, the second interpretation (he bent the law) will be unspoken; even if they think the second is true, their official position will be that the first interpretation is true: he benignly used a different tool.
Can the unspoken second interpretation still be true? No. Bear with me. The reason it can’t be true is that Laplante decided that certifying a class on the spot is, in fact, following the rules of class actions, not breaking them; and once he has made that decision, it is the law. (At least, it is the law provisionally; and if he is upheld on appeal, it is fully the law.) Since his decision was that instant class actions are consistent with the law as it was before his decision, that, too, is now true: he simply and legitimately employed a different tool. There is no path for the second interpretation to be, or rather to stay, true. The law as it is after a judicial decision becomes what the law always was, and law bending transforms into law using.
My claim is that the fate of the second interpretation here is the fate of the public’s influence on the power structure. A perfectly understandable event—a judge bends the law—becomes mysteriously undetectable: he decides he will change what counts as following a rule or breaking it, he does so, and if the ruling secures ratification or consensus from other watchers in the hierarchy, his action is no longer a change at all. Notice that this means the first interpretation (he simply used a tool the power structure intended him to use) will always appear to be true. And this in turn means that influence from outside the power structure will be minimized, if not invisible. Since the (now-unintelligible) second interpretation has been our working assumption, Laplante was not simply following the power structure’s dictates (contrary to now-inescapable appearances). What, then was behind his decision to change the law? Things we might as well call “hydraulic pressures” to see that the laws perform their “intended work.” Many people outside the authority hierarchy will have applied those pressures and influenced that decision.
The pressure here is social pressure. Even if it came from inside Laplante as a conviction that he has a higher duty to protect the law than to follow it, conscience is a social pressure. Or maybe it came quite directly from other people: Laplante’s law clerks threatened to quit, his wife made him sleep on the couch, his former law partner urged on him several ambiguities in class action law that he might exploit. But it is people, and not the authority hierarchy, driving the decision. And the same will be true of all the other judges who ratify Laplante’s decision (if they do): they will be responding to the people around them and their own perceptions of social responsibility. And all this influence from seemingly-powerless people will vanish behind the appearance that the law has not changed.
Now, Judge Laplante may not seem like a good example of “the people” deciding the rules. But I chose this example because informal changes to society’s rules happen incrementally; an agent so close to the hierarchy moving the boundaries of the rules just a bit is a realistic example. Such changes will always be elusive, at best—did the agent move the boundaries or just clarify them?—and formally, they will be invisible.
With this subtle, incremental, and realistic example in mind, let’s quickly jump back to the opposite extreme. Consider that even the most radical inversion of the rules could, in theory, transform into the most benign implementing of the rules, properly understood. One can imagine the killer of the healthcare CEO arguing that corporate executives are enemy combatants in a legitimate rebellion. Extremists have claimed similar things before. They have never achieved a consensus, but that doesn’t mean they won’t another day. People attempt to change the rules in subtle ways that succeed and in flagrant ways that fail, but the key point is that rules are responsive to that hydraulic pressure from ordinary people.
In this different way of thinking, a rule that looks constraining, that looks like it has a clear right and wrong to it, can change in response to any and all forms of social pressure. After all, appointed officials formally occupying stations in the hierarchy don’t live in a bubble. The people, then, have access at countless points to the authority hierarchy, and the whole structure of society is, as Dr. Seuss would have it in “Yertle the Turtle,” made of people. What those outside the authority hierarchy believe and do matters. It will often be ambiguous whether they are breaking the law, changing the law, or putting pressure on someone who has discretion. But over time, plain little turtles like Mack decide if the rules are working okay, or maybe need to be brought down to Earth.