THE TROUBLE WITH TRADITION IN THE LAW : A REACTION TO MAIRA KALMAN

AN ESSAY

Last week, New York Times columnist Maira Kalman wrote a cartoon-laden editorial entitled “May It Please the Court.” See N.Y. Times, April 23, 2009. In it, she discusses her trip to Washington, D.C., during which she attended oral arguments at the Supreme Court and met Justice Ruth Bader Ginsburg. Later, she discusses “great women” in American legal history, culminating in general praise for lawyers who “seek justice.” To make her point about justice, she references Susan B. Anthony, a freed slave named Sojourner Truth and Eleanor Roosevelt. Although she makes a few obliquely critical remarks about the Supreme Court, she essentially praises it. She reserves special respect for “traditional practices,” such as the clerk in a “dapper morning suit” who told her that “adversaries in the Court are not [enemies],” as well as the Court officer who “gets to slam the gavel and say ‘Oyez, oyez, oyez’” before the session begins. Intriguingly, she also writes that the Court: “[is] friendly. There is a sense of well-being and harmony. No miserable clerks scurrying around. They seem to love it here. Hear, hear!”

Apparently Ms. Kalman has not read many recent Supreme Court opinions. In past essays, I have noted that the United States Supreme Court has fallen away from collegiality. In fact, I find that the Justices spend much less time finding common ground about constitutional principle than they spend lambasting their ideological foes. Last term, for example, Justice Scalia wrote several footnotes in his opinions to specifically call Justice Stevens a moron. He did not use that word, of course, but he personally attacked Stevens for writing what he considered “a bad argument.” Justice Alito and Justice Thomas also pull few punches criticizing their fellow jurists when they disagree. In essence, there are many bad losers on the Supreme Court. No matter what Ms. Kalman saw during her visit, it is not an “intellectually friendly” forum. Worse, it is merely a showcase for Ersatz politics. No Justice rises to the Supreme Court without sponsorship by the President. See U.S. Const. Art. II § 2, cl. 2. And in Washington, no President sponsors you unless you pay your party dues. In that sense, Supreme Court justices, despite their outward erudition and declared commitment to enduring principles over expedient results, are little more than appointed political actionaries in 18th Century robes. They are intellectual stand-ins for their Presidential sponsors: Reagan and Bush appointees are generally conservative and unforgiving; Clinton appointees are generally liberal and forgiving. On the Supreme Court, it is “politics as usual”—along with all the rancor and recrimination you would expect from it. Just read Heller v. District of Columbia, 554 U.S. 290 (2008)(holding that the Second Amendment grants an individual right to carry handguns for self-defense purposes) or Boumediene v. Bush, 553 U.S. ___ (2008)(holding that even non-citizen “enemy combatants” at Guantanamo Bay may petition for habeas corpus review in U.S. Federal Courts) to grasp my point here. Contrary to Ms. Kalman’s perceptions, the Supreme Court is not friendly; it is a battlefield. And these constitutional warriors do not take prisoners.

Ms. Kalman seems awed by “Supreme Court traditions.” She likes the “oyez” ritual that precedes oral arguments. She admires the clerk’s “dapper morning suit” and old-fashioned manner. She marvels at the marble pillars and velvet drapery behind the imposing Justices’ bench. She praises Justice Ginsburg’s “doily collar” that she bought in a Parisian boutique. She even titles her editorial “May it Please the Court,” quoting the mystical shibboleth all lawyers must recite before addressing the Justices.

All these things reflect wooden allegiance to tradition. “Oyez?” Are we on Lexington Green listening to the town crier in 1750? “May it please the Court?” That is an archaic double subjunctive straight from 17th Century English common law discourse. In 17th Century English common law discourse, courts burned women at the stake for killing their husbands and disemboweled men for counterfeiting coin. Yet now it is somehow “quaint” to recite their old-fashioned language? What is it about the law that so inveterately clings to stilted tradition? No other profession professes such love for the past. Its very intellectual power derives from ancient decisions; lawyers win cases by analogizing their client’s situation to centuries-old fact patterns. For example, “products liability law” traces its origins to an English case decided in 1703 involving a poorly-constructed outhouse that overflowed and ruined a neighbor’s grass. Tenant v. Goldwin, 92 E.R. 222, 224 (King’s Bench 1703). In that case, the common law judge fashioned a principle that landowners must ensure that their cattle does not wander off and trample their neighbors’ land, just as they must construct outhouses that do not overflow. Id. at 224. In the centuries that followed, lawyers seeking to hold others liable for “dangerous instrumentalities” all analogized their cases to the “runaway cows” and “poorly-constructed outhouses” from the 1703 case. Now, products liability law implicates jet engines, brake pads and roller coaster ball bearings. But lawyers arguing cases must show that these modern technologies somehow relate to those evil cows from 1703. This is tradition run amok. Lawyers and judges are not creators. If they are inventive at all, they are inventive only in the sense that they cunningly relate modern issues to archaic cases without being utterly facetious.

Tradition carries weight. I cannot really fault Ms. Kalman for feeling awe when she stepped into the Supreme Court. Grand pillars, robes, doily collars, marble facades, 17th Century English subjunctive requests, magic words like “oyez,” dapper morning suits and velvet curtains all combine to make an unmistakably imposing impression. It is nothing like everyday life in 2009. Rather, it is more like stepping before the Wizard of Oz, with smoke and lightning bolts pouring forth from a huge altar, complete with amplified voices speaking a half-unintelligible language replete with incomprehensible technicalities. I have always written that law is sorcery. When combined with tradition, it is even more mystifying. It does not illuminate social issues in an accessible way. To the contrary, it obfuscates the issues with myriad “traditional” rules, customs, usages and procedures that confound rather than enlighten.

In my view, it is all empty show. Tradition is reassuring, but when it degenerates into “blind allegiance to the past,” it becomes absurd and pretentious. Justice Oliver Wendell Holmes understood this. In a Harvard Law Review article published in 1897, he savagely critiqued undue reliance on tradition in legal reasoning: “[It] is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). Sadly, however, very few people can see through tradition. No matter how stilted and inapplicable traditional rules and customs may be, they carry weight. They symbolize power and authority. They have “been around for a long time,” and people trust “staying power.” It is no surprise that the uninitiated feel awed when they confront tradition in the law. It all looks so impressive; it is all so foreign, yet so imposing. That is the law’s strength. It represents the weight of the past, with all its accumulated authority and power. It speaks beyond generations, cowing those who come centuries later. It certainly cowed Ms. Kalman. It even fooled her into thinking that the Supreme Court was “friendly” and that “adversaries” in the Supreme Court are not “enemies.”

To speak broadly, law is tradition. In some sense, it must be. Tradition refers to “the way in which people always behave or think” in certain circumstances. We know tradition because we live with it. We can predict it. We know what tradition dictates at Christmastime, or at Easter, or on Halloween, or at a wedding, or at a birthday party, or during an election. We have experienced all these things in the past; we know what to expect when they happen. By embodying tradition, the law allows citizens to predict behavior and tailor their own conduct to meet traditional expectations. It gives them a way to deal with inevitable disputes in commerce. It also provides them a reliable mechanism to seek compensation when another person wrongs them. When the law criminalizes behavior, it embodies traditional morals concerning “bad conduct.” In that sense, it encourages people to conform to tradition; and it allows them to predict how the law will treat them if they do not. Tradition is simple. If something is traditional, we know what’s coming. It is not profound; it simply embodies common experience. This is precisely what the law does.

Like tradition, the law is unexciting and unprofound. In virtually every case, the law conforms to traditional understandings in most social matters. If a person breaks a contract, the law provides compensation to the wronged party and a penalty to the dishonorable one. If a person intentionally harms his neighbor, the law provides compensation to the victim and penalizes the wrongdoer. If a person kills his neighbor, the State punishes the killer as a murderer. In all these cases, the law reflects traditional moral understandings to meet the situation at hand. It may speak its own, inaccessible language, but the results are intuitively familiar to anyone who lives in the society. In short, the law reflects and embodies traditional social values, no matter the subject. Traditional social values, at least in the United States, are not very exciting or inventive. They simply provide assurance to all citizens that they can live, work, make money and raise families without worrying about being robbed, killed, defrauded, dispossessed or negligently injured. They keep power in place and prevent popular discontent by providing a semblance of “justice for all.” At the same time, the law maintains respect for itself by dressing itself up in traditional garments and awing the population with impressive power displays, just as it awed Ms. Kalman.

I feel sorry for Ms. Kalman. The law blinded her with its magic show. Not only did she buy into its tradition-based rhetoric, but she also failed to see how uninventive it really is. Toward the end of her editorial, she extols Justice Ginsburg, Susan B. Anthony and Sojourner Truth for “fighting for justice their whole lives.” By including these examples in a piece about the Supreme Court, I can only conclude that she believes the law exists to expand justice and vindicate “right.” Again, Ms. Kalman reveals her ignorance of the law. Still, her error is forgivable. After all, even the Supreme Court building bears the words: “Equal Justice Under Law.” Our public institutions all profess to “serve liberty and justice.” Even the Pledge of Allegiance reminds us that our Nation purportedly guarantees “liberty and justice for all.” But in practice, the law stands for something completely different than “natural right” or “true justice.” It stands for traditional social values, and those values necessarily exclude “justice for all.” To be regrettably blunt, commercial success for some means that not all can be successful. The law assures this result. It is “traditional.” It does not aim for justice or abstract virtue, even if justice results in many cases. It aims for prevailing social order and commercial stability. Just look at any Court docket. Most cases involve petty private disputes for money or property. These litigants could care less about justice; they want money damages and profit. In England and America, commercial success always came first. It would be nice if justice always accompanied commercial success, but it is not necessary. After all, when one man succeeds in business, there is always another who fails. The man who fails always believes he has suffered injustice. But the winner believes that justice has been done. Our legal tradition reaffirms Anglo-American society’s dedication to free market success and commercial stability. All other concerns are incidental, including justice.

I wish the law did serve justice. I wish there were more Susan B. Anthonys and Sojourner Truths in the world, especially the legal world. But the fact that these women had to “battle injustice” in the first place reveals that the law does not traditionally advance justice. These women “fought the law.” From their perspective, the law was unjust. From the majority perspective, however, the law represented “traditional social values about women;” women like Susan B. Anthony were “troublemakers.” The law’s fixation on tradition gives crusaders causes to advocate. In this sense, the law does not readily change with the times. It takes fearless zealots to make war on “tradition” and to wring meaningful change in society. The law certainly will not take the first step. During Susan B. Anthony’s time, the law and tradition weighed against her cause, no matter how “abstractly just” it was. Tradition does not favor reformers who fight for justice. Yet without reformers, the law would never change. Reformers always “want justice.” The law never gives it to them, because it blindly follows traditions. In that sense, it is foolish to think that the law “embodies justice.” If it did, there would be no need for reformers; change would come from within. Tradition and reform are mutually exclusive concepts. The law serves tradition. Thus, it can never instigate reform.

Tradition is problematic. I applaud Ms. Kalman for praising women who fought for justice. But fighting for justice necessarily implies a battle against ingrained social tradition. In general, the law embodies and defends those ingrained social traditions. In that light, I must point out that the law does not serve justice. It may provide a cumbersome vehicle for change, but until the change occurs, it ruthlessly suppresses every attempt to alter tradition. Dr. Martin Luther King, Jr., went to jail many times to before achieving a few legal changes favoring African-Americans. He wanted the law to serve justice. To achieve that goal, he knew the law would assert tradition over him. In so doing, he understood that the law was unjust. If it had been just, there would have been no need to reform it. Before Dr. King wrought his changes on the law, the law had only one purpose: To rigorously defend its traditions and the social values enshrined in those traditions.

Not all traditions are “quaint,” like doily collars or morning suits. To the contrary, in many cases they are pernicious, like the racial values against which Dr. King crusaded or the brutal punishments for women who murdered their husbands in 17th Century England. Put simply, the law generally defends traditions without regard to their substance. Justice advances; the law favors the status quo. They do not readily coexist. Before justice prevails through law, there is always a confrontation between old and new, a battle between reform and tradition. There is always a rebel and there is always a State official who seeks to suppress him. The law never rebels; it only suppresses. To that extent, Ms. Kalman should not look to the law as a source for justice. Rather, she should look to individual heroes—like Susan B. Anthony—who fight to change the law and its pernicious traditions. Individuals create, invent, change and reorder the world. The law simply provides a framework for people to make money and to maintain social distinctions.

By serving tradition, the law resists change. Justice evolves more quickly than the law. That is why true justice flows from individuals, not legal institutions. While the law may change over time, it will not change by itself. It needs a good jolt from daring individuals before it alters its old-fashioned, backward-looking ways.