Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 153 Issue: 48

March 09, 2007

Truth: Justices Will Know It When They See It

Last Nov. 13, the U.S. Supreme Court issued its first decision of the term. Ayers v. Belmontes, No. 05-493. The court upheld the imposition of the death penalty in a California murder case. In doing so, the court held that California's so-called ''catch-all'' jury instruction adequately enabled the sentencing jury to take into account the defendant's evidence that he could lead a constructive life in prison if his life were spared.

The Supreme Court's rejection of a constitutional challenge to the imposition of the death penalty is hardly ''man bites dog'' news. Yet what made this case newsworthy was the fact that it was a 5-4 decision.

The New York Times reported that no one at the court could ever remember a term that began with a 5-4 decision. Linda Greenhouse, ''Justices Uphold a Death Sentence Twice Overturned,'' New York Times, Nov. 14, 2006, section A, page 25. Usually the first opinion handed down after argument is unanimous, for the obvious reason that a unanimous opinion is easier to produce than an opinion that must await a dissent. Greenhouse attempts to explain this oddity by noting that, although most cases are discussed at only one or two Supreme Court conferences, this case had been discussed at nine different conferences before certiorari was granted. Greenhouse surmises that a group of justices may have been attempting to have the court decide the case summarily on the cert petition. Thus, by the time this effort failed and the court ordered briefing and argument, much of the opinion may already have been drafted.

Yet there is still something disconcerting about a 5-4 death penalty decision handed down this quickly. The decision was released only 41 days after oral argument. In other words, the court decided that a man should die in an interval of time only slightly longer than the gestation period of a gerbil. (The gestation period of a nonlactating gerbil is 24 to 26 days on average. See http://www.v-e-t-s.co.uk/gerbils.htm.)

And it is especially disconcerting since Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. are so new to the court. Indeed, this was the very first case in which Alito decided a death penalty issue. You might expect that the court would at least have made a pretense of hand-wringing before affirming a decision to send a man to death.

Yet is the result itself any surprise? Would it shock you to learn that the five justices in the majority were all Reagan-Bush pere-Bush fils appointees? This presidential triumvirate has appointed six justices. The only one of the six who voted against the death penalty was Justice David Souter, the ''stealth candidate'' whose nomination was succinctly described by the Wall Street Journal as a ''debacle'' for conservatives. Tinsley E. Yarbrough, David Hackett Souter: Traditional Republican on the Rehnquist Court, 221 (Oxford, 2005).

Think of it: 41 days from oral argument to affirming a man's execution. And because it was a 5-4 decision, a change of only one vote in the majority would have been the difference - literally - between life and death. Why wouldn't the majority - especially newcomers to the court such as Roberts and Alito - want to at least think about the case a little longer? After all, the term had another eight months to go. Isn't it at least possible that a closer reading of the voluminous briefs and record might reveal a new insight that might save a man's life? Could listening to the audio tape of the oral argument reveal a point missed the first time around? Could rereading the draft dissent perhaps change a vote from ''death'' to ''life''?

I mean, isn't this the way the Supreme Court works? The late Erwin Griswold, who served as both Solicitor General of the United States and the Dean of Harvard Law School, wrote that ''the volume of the work of the Court is staggering,'' with the justices busy ''reading long records'' and ''writing reflective opinions.'' Erwin N. Griswold, The Supreme Court, 1959 Term - Foreword: Of Time and Attitudes - Professor Hart and Judge Arnold, 74 Harvard Law Review 81, 84, 92, 94 (1960). Thinking, rethinking, changing one's mind - these are the marks of a collegial court.

Aren't they?

Judge Richard A. Posner recently answered this question with a resounding ''No.'' Posner categorically states that ''[T]hese things were not true when [Griswold] wrote and are not true today.'' Posner, The Supreme Court, 2004 Term - Foreword: A Political Court, 119 Harvard Law Review 31, 62 (2005). There is no need for the justices to read much of the case record; most of the opinion writing is farmed out to clerks; and the opinions themselves are not ''reflective'' but rather ''briefs in support of the decisions.'' Id.

Well, then, how do the justices decide the kinds of issues before the court?

Let me suggest an analogy from the field of mathematics.

In the early 20th century, a mathematician named David Hilbert took on an ambitious project. His goal was to prove that all the axioms of arithmetic were complete and consistent. By ''complete'' he meant that each axiom could be established through a formal proof. By ''consistent'' he meant that all the axioms taken together did not yield any logical contradictions.

This attracted the attention of Kurt Godel, the man Time magazine later recognized as the greatest mathematician of the century. Contrary to Hilbert's hope, Godel proved that no formal system rich enough to contain arithmetic can be both ''consistent'' and ''complete.'' In other words, in any such formal system of axioms there must be at least one axiom that is true but unprovable. (Space precludes me from including Gdel's proof. For descriptions of Godel's proof that are accessible to nonmathematicians, see Rebecca Goldstein, Incompleteness: The Proof and Paradox of Kurt Godel, 164-168 (Norton, 2005); John M. Rogers and Robert E. Molzon, Some Lessons About the Law From Self-Referential Problems in Mathematics, 90 Michigan Law Review 992 (1992)).

Consider that concept: true but unprovable. Posner describes the Supreme Court's docket as ''dominated by cases in which the conventional sources of legal authority, such as pellucid constitutional text or binding precedent ... do not speak in a clear voice. If they did, the Court would rarely have to get involved in the matter; it could leave it to the lower courts.'' At 42-43. He continues, ''The most striking characteristic of constitutional debate in the courts ... is its interminability. Everything is always up for grabs intellectually, though not politically.'' At 41. For this reason, Posner asserts that ''[I]t is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly.'' At 40.

So why can't the nine justices sit down and reason together to reach the correct result? Posner says that ''[R]easoned argument is ineffectual when the arguers do not share common premises.'' At 73. In fact, argument may actually ''drive the antagonists further apart - or at least ... dig in their heels and clutch their beliefs closer to their chests.'' Id.

So how does an individual justice decide a case? It depends on where she starts. Posner provides some examples of what he refers to as different ''starting premises'': ''One disputant thinks the public safety more important than the rights of people accused of crime; the other thinks the opposite. One views the actions of the police through the lens of a potential victim of crime, the other through the lens of a person wrongfully accused of crime.'' At 73. And so on.

Is Posner breaking new legal ground? Consider this observation on the nature of judging: ''Judgment begins ... with a conclusion more or less vaguely formed; a man ordinarily starts with such a conclusion and afterwards tries to find premises which will substantiate it.'' Jerome Frank said this in 1930. Jerome Frank, Law and the Modern Mind, 108 (1930).

And a recent study suggests that a justice's ideological slant affects more than just constitutional decisions. Ward Farnsworth compared decisions by Supreme Court justices in two kinds of criminal cases: those raising constitutional issues and those with nonconstitutional issues, such as statutory construction. He posited that there should be no necessary connection between decisions in these two types of cases. Instead, he found an amazing congruence: justices tended to be either pro-prosecution or pro-defense regardless of the issue in the criminal case. He credited this slant to what he called a judge's ''priors.'' Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court's Criminal Docket, 104 Michigan Law Review 67 (2005).

(In light of Farnsworth's work, you might be interested that the second death case of the term dealt with statutory, not constitutional, interpretation, and the court affirmed the death sentence in a 5-4 vote with the identical lineup of justices from Ayers. Lawrence v. Florida, No. 05-8820, decided Feb. 20.)

Relate this back to Godel's theorem. Remember that Godel posited that an axiom could be true but nevertheless ''unprovable.'' But how can we know something is true without being able to prove it? For Godel, this is where intuition comes into play ... the idea that knowledge may originate from a source beyond the conscious mind. An intuition is ''given to us by the nature of things... [it is] the a priori analogue to sense perception, a direct form of apprehension.'' Goldstein, p. 134. Some looked at Godel's theorem and despaired that man could not create a formal system that is both complete and consistent. But Godel was excited by the idea that no formal system could be devised to include everything man could know; it meant that man was more than simply a reasoning machine. And it is intuition that differentiates the human mind from a mere machine. Let's be clear. Godel and the Supreme Court are dealing with very different concepts of ''truth.'' The truth that Godel pursued through intuition was for him a Platonic reality. Truth on the Supreme Court is pretty much what five justices will agree on in a given case.

Yet Godel's ''intuition,'' Posner's ''premises,'' Farnsworth's ''priors'' - these may best explain why, only 41 days after oral argument, no justice had a scintilla of doubt concerning whether a man named Fernando Belmontes should live or die. The opinion in his case - and other Supreme Court cases - can best be described as a polemic masquerading as a proof.

When faced with an issue of obscenity, Justice Potter Stewart famously said ''I know it when I see it.'' Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). It just may be the most astute - and chilling - observation that anyone has ever made about how a Supreme Court justice actually decides a case.