This past week, I have read two judicial decisions that – once again – remind me how powerful mythologies are deployed to justify conduct that harms and mutilates human beings. However, in both cases, the majority of judges penetrate the mythology and see the case in human terms. The cases can therefore teach all of us who care about fighting injustice. However, their lesson will be particularly relevant to lawyers and law students who are in, or are considering joining, the struggle against injustice.
The Two Cases
Buck v. Davis, U.S. Supreme Court, No. 15-8049, 2/22,17
Mr. Buck, an African-American was convicted of murder and sentenced to death in Texas. In the penalty phase of his trial, one issue for the jury was whether he would be likely to commit violent acts in the future. A jury decision for death had to be unanimous on this issue. The trial judge had appointed a psychologist as an “expert” to examine Mr. Buck and report on, among other things, this issue of future dangerousness. The expert, Dr. Walter Quijano, concluded that Mr. Buck was “unlikely to be a future danger.” However, Dr. Quijano also said, in his report, that Mr. Buck is “statistically more likely to act violently because he is black. The report read, in relevant part: ‘Race: Black: Increased probability.’”
Mr. Buck’s trial counsel, despite having a copy of the report, called Dr. Quijano as a mitigation witness in the penalty phase. The prosecutor, on cross-examination, put the damaging statement about race into the record.
Mr. Buck’s case was considered by state and federal courts in several contexts. The Supreme Court majority opinion, by Chief Justice Roberts for six Justices, contains includes important consideration of the procedural options available to capital defendants. The opinion also notes that former Texas Attorney General John Cornyn had denounced the injection of race into capital sentencing, and that Texas had consented to retrials in several cases where Dr. Quijano’s testimony was admitted. Texas did not, however, consent to retrial for Mr. Buck.
The Court held that defense counsel’s conduct was constitutionally ineffective, and that Mr. Buck is entitled to judicial review of that error.
The opinion is most notable, however, for the Chief Justice’s approach to the central issue of racism. Here is the key language:
[O]ne thing would never change: the color of Buck’s skin. Buck would always be black. And according to Dr. Quijano, that immutable characteristic carried with it an “[i]ncreased probability” of future violence. Id., at 19a. Here was hard statistical evidence—from an expert—to guide an otherwise speculative inquiry.
And it was potent evidence. Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” [Citation omitted.] In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.
Justice Thomas, joined by Justice Alito, dissented. The flavor and basic premise of the dissent is this:
Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it.
Justice Thomas then chronicles trial evidence showing Mr. Buck’s alleged lack of remorse, as though some quantity of possibly relevant evidence could wash away the stain of overt racism.
One should notice what has happened here. Chief Justice Roberts looks at a trial record unmistakably tainted by appeals to race prejudice, and reasons from that palpable injustice to a conclusion. Along the way, he notes the ways in which the State of Texas acknowledged the problem and then refused to do anything about it. This is judicial reasoning that aptly reflects Jerome Frank’s counsel that the “the law is not what it says, but what it does.” The Chief Justice confronts and denounces one of the mythologies of racism.
Justice Thomas takes a different road. He begins by focusing on the procedural barriers that Mr. Buck must hurdle, and laments that the Court seems not to have built them high enough or guarded them well-enough to deny relief in this procedurally-complicated case.
This is reasoning by category. It is reasoning by primary reliance on a mythology about federal judges as gatekeepers in the image of Cerberus.
Kolbe v. Hogan, U.S. Court of Appeals for the 4th Circuit, No. 14-1945, 2/21/17
The Maryland legislature passed the “Firearm Safety Act”, banning “the AR-15 and other military-style rifles and shotguns (referred to as ‘assault weapons’) and detachable large-capacity magazines.” The legislature acted in response to the carnage at Newtown, Connecticut, where a gunman murdered 20 first-graders and six adults, and to other shootings done with the weaponry that the act banned.
The court of appeals reheard the case en banc, that is with all 14 active judges participating. The court upheld the ban by a vote of 10 to 4. Judge King’s majority opinion begins by observing that the Newtown killings were a motivation for the ban.
I was most struck, however, with Judge Wilkinson’s concurring opinion, which is at once compelling, measured, and eloquent. Judge Wilkinson sounds a conservative note in answer to the assertedly conservative assertions of those who would overturn this ban. He argues for deference to an elected legislature, responding to constituents’ concerns:
Disenfranchising the American people on this life and death subject would be the gravest and most serious of steps. It is their community, not ours. It is their safety, not ours. It is their lives, not ours. To say in the wake of so many mass shootings in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny – this would deliver a body blow to democracy as we have known it since the very founding of this nation.
In urging us to strike this legislation, appellants would impair the ability of government to act prophylactically. More and more under appellants’ view, preventive statutory action is to be judicially forbidden and we must bide our time until another tragedy is inflicted or irretrievable human damage has once more been done. Leaving the question of assault weapons bans to legislative competence preserves the latitude that representative governments enjoy in responding to changes in facts on the ground. Constitutionalizing this critical issue will place it in a freeze frame which only the Supreme Court itself could alter. The choice is ultimately one of flexibility versus rigidity, and beyond that, of whether conduct that has visited such communal bereavement across America will be left to the communal processes of democracy for resolution.
Judge King’s majority opinion puts the case in human terms, and thus busts the NRA-model mythology based on a misreading of the Second Amendment. Judge Wilkinson counterposes the mythology of popular sentiment to that of judicial interpretation of the constitution.
Taken to great length, Judge Wilkinson’s formulation could justify judicial abdication of responsibility to enforce the counter-majoritarian provisions of the constitution to the whims of popular passion.
Judge Wilkinson is not going that far, in this case at least. He seems to be saying, and with reason, what Justice Frankfurter once said, that “the Court should not be ignorant as judges of what we know as men.”
To be clear, I want only to note that the idea of deference to legislative judgment is not a mythology to be employed in all circumstances and under all conditions. One must not be like the cat of which Mark Twain wrote:
We should be careful to get out of an experience only the wisdom that is in it — and stop there; lest we be like the cat that sits down on a hot stove lid. She will never sit down on a hot stove-lid again — and that is well; but she will never sit down on a cold one any more.
Let us now look at the dissent. Judge Traxler begins:
Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens…. [T]he Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home.
This is mythology writ as large as could possibly be. There is this wonderful thing known as the Second Amendment, and to curtail in any way a right to own any firearm threatens this intangible “it,” and therefore curtails peaceable and often essential pursuits such as hunting, target shooting and defense of one’s home.
To which the answer must be: No, Judge Traxler, you have mistaken a narrow regulation based on great evidence of harm for a wholesale assault on the framework of freedom. It is a characteristic of mythology that it invites us to look at images and ignore the real world around us. To paraphrase Christopher Fry, we are asked to be fearful of the possible leap by the possible assassin out of the conjectural dark corner.
The mythology of this dissent goes beyond error about how one ought to decide cases that have human consequences – which is pretty much all cases. Imagine for a moment hunting rabbits, or deer, or even elephants, with an assault weapon. The use of such firepower rather unsporting, even for those who go in for hunting. And since one trigger pull can unleash a devastating amount of lethal power, your intended venison dinner will be pretty messy.
As for home defense and self-defense, a baseline rule of justification is proportionality. The person you think is a home invader might be present on your property for lawful purposes. A more measured response, even one with firearms, can mean that the confrontation is not lethal and that if you have made a mistake it is at least not a fatal one. That said, if you are a person who wants to have firearms in the house for self-defense, then learning to use them safely, effectively and accurately must be part of the plan.
The Lessons Here
Whatever your view of the judge’s opinions – majority and dissent – these cases , as I have said, merit study.
In earlier blog posts, which you can review here, I have noted the way that power-wielders manipulate mythologies. I adopted Roland Barthes’ term “mythologies” because it captures the way that what “goes without saying” is invoked to forestall analysis of what is really going on and of human consequences.
What Barthes termed “mythologies” in his eponymous collection of essays can also be called “filters.” Psychologists and social scientists use that term to refer to the prejudgments and preconceptions that guide our decisions about, for example, people who are different from ourselves. Thus, racism, sexism, homophobia, transphobia, xenophobia and other social attitudes are expressed and acted out by virtue of unexamined attitudes that the actor may have acquired.
There is nothing inherently wrong with filters. In the cafeteria line, I won’t pick up an item that looks like something I don’t want to eat. My reaction is based on past experiences which I might not be able to describe. No harm done.
Another word for mythologies or filters is “stereotypes.” That is the word Chief Justice Robert used in the Buckcase.
As I was pulling together material for this essay I came across a monograph by the French philosopher Bertrand de Jouvenel, The Pure Theory of Politics.
Every political situation is complex and original. The hasty mind, however, seizes upon some single feature because of which it assigns the given situation to a certain class of situations, previously formed, and in regard to which the mind has passed judgment once for all. Thus, for instance: “The situation envisaged involves centralization; I am in general for (against) centralization : therefore my stand is as follows”
It seems inevitable that such work-saving procedure should be commonly resorted to: which implies a permanent demand for ideologies—taxonomic devices constituting wide classes and inspiring general judgments, allowing us in short to take a stand on problems we have not analyzed.
So the psychologist, the semiologist (Barthes), and the philosopher/political scientist have all noticed the same phenomenon. As de Jouvenel puts it, the ideology, or “taxonomic device” allows us to “take a stand on problems we have not analyzed.” In short, we can express an opinion about a situation we really know nothing about. We cover up our self-imposed ignorance with a slogan or an epithet: “Black,” “gay,” “Muslim,” “immigrant,” or whatever.
Faced with a filter, stereotype, ideology, taxonomic device or mythology, the psychologist will make a tent with her hands and say politely, “let’s take a deeper look at why you say that,” while thinking “this is indeed some sort of pathology that must be addressed.”
The semiologist/journalist will expose the fallacy and set out the facts.
The lawyer will say, again, “no, nothing ‘goes without saying,’ nor ‘goes without proving.’ Let me introduce you to the evidence.”
The watchful citizen will say no to government by epithet, in which decisions of consequences are shrouded by a demagogue in derogatory terms.