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Consensus and the Supreme Court

June 27, 2014

“Yet, there are those who have a different sense
Of what a lawyer’s role in life should be…”
– William Kunstler, 
To Leonard Boudin

On the op-ed page of today’s New York Times, the respected lawyer (and Deputy Solicitor General) Neal Katyal offers some resounding praise for the tide of unanimity that has recently washed over the Supreme Court.  Arguing that unanimous decisions “signal that the justices can rise above their differences and interpret the law without partisanship,” the article approvingly notes that this judicial season has seen more 9-0 decisions than any in the past 75 years, and proceeds to rank past Chief Justices by the frequency with which their courts achieved consensus.  Katyal uses 1954′s landmark decision in Brown v. Board of Education as a benchmark, citing the moral clarity its unanimity conferred.

Thurgood Marshall, hero of Brown v. Board of Ed

Thurgood Marshall, hero of Brown v. Board of Ed

Problem is, this example stacks the deck.  The issue before the court in Brown — whether the “separate but equal” system of racial segregation that had emerged in the aftermath of slavery was constitutional — is one on which reasonable minds cannot disagree.  Just as few Americans today would countenance arguments in favor of the institution of slavery, even passingly, the sane among us cannot conceive of racial segregation — vicious, hateful, and profoundly corrosive of democratic ideals — in positive terms.

While there may be legal issues in today’s national consciousness that can be described in similarly stark terms (the right of LGBT folks to marry comes to mind), they’re few and far between.  In fact, the entire focus of our legal system is adversarial — it’s designed to benefit from impassioned disagreement.  One of the first lessons lawyers are taught is that vigorous advocacy, far from a vice of overzealous practitioners, is at the core of their professional responsibilities.  Our legal system is open to many kinds of critique, including critiques of this way of structuring the judicial process around (hopefully, productive) disagreement, but such critiques, whatever their validity, cannot change the fact that, as currently constituted, that system derives most of its legitimacy from a balance between opposing interpretations of laws and events.

So what does it mean for a court to decide a complicated case unanimously?  In her book Silencing Political Dissent, civil rights lawyer Nancy Chang tells the story of Charles Schenck and the Espionage Act of 1917:

“The worldwide political unrest of the World War I era brought forth a fresh assault on the First Amendment.  The Espionage Act of 1917 made it a crime to ‘willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language’ about the United States, or to ’cause or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States.’  In 1919, the Supreme Court upheld the conviction under the Espionage Act of socialist Charles Schenck, who had printed and distributed pamphlets urging opposition to the draft.  The Court’s unanimous opinion, authored by Justice Oliver Wendell Holmes, flatly rejected Schenck’s argument that his speech was protected under the First Amendment.  Instead, the Court held that government may restrict speech when it presents a ‘clear and present danger’ of ‘bring[ing] about the substantive evils that Congress has a right to prevent.’  The Court went on to declare that ‘[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.’

“The Schenck decision is perhaps best known for the Court’s pronouncement that an individual who falsely shouts ‘fire’ in a crowded theater is not protected by the First Amendment.  Historian Howard Zinn has suggested that Schenck’s act was more akin to someone ‘shouting, not falsely, but truly, to people about to buy tickets and enter a theater, that there was a fire raging inside.’  Zinn questions whether the war itself ‘was a “clear and present danger,” indeed, more clear and present and more dangerous to life than any argument against it.’”

Charles Schenck, Philadelphia Secretary of the Socialist Party of America

Charles Schenck, Philadelphia Secretary of the Socialist Party of America

Part of what Zinn’s commentary elucidates is the obscurity intrinsic to the notion that Katyal touts of “justices rising above their differences and interpreting the law without partisanship.”  Far from a cut-and-dry case of protecting the national interest, the unanimity of the Schenck court arguably served as a smokescreen that concealed just how open to debate the facts of Schenck really were.  Holmes draws on the metaphor of shouting “fire” in a crowded theater to make his decision seem a forgone conclusion; Zinn points out that this metaphor is specious.  It is arguable that Katyal does something similar, drawing on the unanimity of a case decided within the bounds of a piercing moral clarity to argue about a legal landscape in which such clarity is profoundly rare.

In his forthcoming book Moments Politiques, the philosopher Jacques Rancière describes the meaning of consensus.  It is not, he writes, “the romantic absurdity of responsible partners together discussing facts and solutions to objective problems, but the immediate identification of the subject who fears.  Political consensus does not usually emerge from ‘reasonable’ opinion.  It arises from unreasonable passion.  Primarily, people experience consensus not among, but rather against, each other.  To participate in consensus is to feel together what we cannot feel.”

Chief Justice Rehnquist, bearing the cockamamie stripes he had added to his judicial robes

Chief Justice Rehnquist, displaying the cockamamie stripes he had added to his judicial robes

In his op-ed, Katyal also tells the story that “one of Chief Justice William H. Rehnquist’s final public acts was to express exasperation at the fractured court.  In 2005, on the final day of his final term, a frail Rehnquist described his last majority opinion by first outlining the views, then the three concurrences filed, and then the three dissents filed, and joking, ‘I didn’t know we had that many people on our court.’”  The story might seem a little less adorable if we consider that the decision Rehnquist was presenting permitted the state of Texas to display a 6-foot mock-up of the Ten Commandments on the grounds of its Capital building.  What if Rehnquist had instead quipped, “I didn’t we had any concern for the separation of church and state?”  This was an important, divisive issue — one on which a diversity of opinion should have been celebrated, not snickered at.  (Personally, I’m put in mind of the memorable couplet civil rights lawyer par excellence and occasional sonneteer William Kunstler composed about Rehnquist: “The thought that such a man could lead the Court / Might well have made the Framers self-abort.”)

The question of who gets heard in the courtroom, of whose stories get told, is ultimately of profound importance.  Unanimity may be pleasant, but it doesn’t increase the number of narratives we hear and navigate the political world by, and a lawyer of Katyal’s stature should know this.  When it comes to interpreting our laws, the livelier the debate, the better.

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