Sorting It Out

In the last two weeks, the nation has been treated to the spectacle of a deeply divided, highly ideological Supreme Court injecting itself into and ultimately deciding the contested presidential election. As the nation watches, the mythological veneer of a court standing comfortably above politics and devoted to truth and reason has been methodically and forcefully stripped away.

It is, therefore, hard to imagine a better time for the publication of “Minding the Law,” a brilliant dissection of the court’s work by two eminent scholars, law professor Anthony G. Amsterdam and cultural anthropologist Jerome Bruner, both of New York University. Issue by issue, case by case, Amsterdam and Bruner make mincemeat of the court’s handling of the most important constitutional issue of the modern era: how to eradicate the American legacy of race discrimination, especially against blacks.

The general purpose of “Minding the Law” is to unmask the hidden techniques by which the court has avoided coming to terms with the dilemma of racism and to place that avoidance in a larger cultural context. The authors are ideally suited to this task.

Prior to joining the legal academy, Amsterdam was the mastermind of the NAACP Legal Defense Fund’s national campaign to end the death penalty--which, in brighter days, succeeded in convincing the Supreme Court to ban the punishment in 1972. His surpassing brilliance in that role is well-chronicled and includes such incredible, yet true, stories as the time he dictated a complex legal brief, complete with citations, entirely from memory while stopped at a roadside pay phone.

Bruner is an internationally acclaimed cultural anthropologist who has written several of the leading books in his field. “Minding the Law,” which shifts between Bruner’s intriguing exploration of habits of thinking and expression and Amsterdam’s razor-sharp legal analysis, arose from a “lawyering theory” seminar they teach together, and readers apparently have Bruner to thank for enticing his somewhat reclusive colleague into sharing his insights with the world beyond the classroom. The results are profound and disturbing.

On the most general level, Amsterdam and Bruner attempt to place the court’s work in a larger cultural context. As they explain, America is forever torn between the idealistic egalitarianism of what they call its “Creed” (“all men are created equal and endowed by their Creator with certain inalienable rights”) and what they describe as a “suspicious, grasping, clannish” American “Caution.” While the authors admit to offering no grand conclusions, it seems to be their hope that, in unmasking the hidden inroads that the “Caution” has made into the workings of the Supreme Court, they will somehow contribute to a future flowering of the “Creed.”

The court under Chief Justice William Rehnquist has certainly provided plenty of grist for the authors’ mill. And the authors, drawing on Amsterdam’s experience with the NAACP, focus on one of the most important recent shifts in Supreme Court jurisprudence: the retreat from the era of aggressive civil rights enforcement that began with the court’s 1954 landmark ruling in Brown vs. Board of Education ending segregation in public life.

As Amsterdam and Bruner argue with considerable force, the “Caution” is overtaking the “Creed.” Where once the court moved aggressively to root out the vestiges of discrimination, in recent years it has placed stringent limits on affirmative action, the enforcement of minority voting rights and the scope of judicial power to further Brown’s mandate of desegregation.

The main purpose of “Minding the Law” is to expose and place in cultural context the subterranean ways in which the court (reflecting the dominant legal culture) has neutered Brown, allowing it to remain a cultural icon of indeterminate meaning while cutting away its progressive force. “Although the court’s opinions continue to cite Brown,” the authors complain, “they are plainly not following Brown in the sense of reasoning under its influence, but are drawing from Brown whatever they can read into it that will support results driven by concerns that have nothing to do with Brown’s.”

In their effort to expose the deep cultural biases of the Rehnquist court, the authors have organized “Minding the Law” into paired chapters in which the authors first discuss cultural theory, then apply that theory to specific Court opinions. Thus, for example, we learn in one theoretical chapter about the way “categorization” reflects “a particular understanding of human affairs and the values by which they should be measured.” Then, in the following chapter, the authors show how Supreme Court justices surreptitiously change or misstate the boundaries of legal categories to impose their values on the law. Though uniformly enlightening, the theoretical aspects of “Minding the Law” are not exactly easy reading. But the authors’ relentless destruction of the purported logic of various court opinions is the sugar that helps this medicine go down.

Whatever one’s politics, it is difficult to read the case studies in “Minding the Law” without concluding that lawmaking at the Supreme Court has run far off the rails. The only reason that we give nine un-elected life-tenured justices the power to decide the nation’s most vexing political and legal questions is because we believe that their process of deliberation and persuasion is superior to decision-making in the other branches of government. If, instead, (as Amsterdam and Bruner suggest) the justices are simply using tricks of description and rhetoric to mask their own personal preferences, then by doing so the justices have called the court’s very reason for being into question.

To make this point one could turn to several of the cases Amsterdam and Bruner discuss. An especially important example is their treatment of Justice Lewis Powell’s opinion in McCleskey vs. Kemp, upholding the Georgia death penalty against claims of racial bias. Amsterdam was deeply involved in the McCleskey litigation, which most anti-death penalty advocates consider their most devastating loss. And the decision--in which a court divided 5-4 found no race problem in the administration of capital punishment--is particularly relevant and troubling given the recent release of a Department of Justice study revealing that roughly 80% of all federal death penalty defendants are minorities.

In McCleskey, the court was confronted with a state-of-the-art statistical study showing that people who killed whites were more than four times more likely to receive the death penalty than people who killed blacks. Simply put, the study revealed that Georgia’s system for capital punishment placed much more value on white life than black.

Amsterdam and Bruner exquisitely dissect the rhetorical devices Powell employed for getting around the troubling numbers. “At most,” Powell wrote, the study “indicates a discrepancy that appears to correlate with race.” This is an understatement along the lines of saying that studies of lung cancer indicate a discrepancy that appears to correlate with smoking. But, as Amsterdam and Bruner argue, by using rhetoric to reduce hard numbers to the level of mere appearance, Powell made a morally and legally indefensible opinion seem relatively benign.

Reading “Minding the Law” reminds one of the old line from “Casablanca,” uttered by Renault, the police prefect, as he tries to close down Rick’s cafe: “I’m shocked--shocked--to find that there is gambling going on in here!” It is hardly surprising, for example, that Rehnquist, who thought that Brown vs. Board of Education was wrongly decided in the first place, should undermine the force of that opinion at every opportunity. And it is hardly out of keeping for him to have done so without recourse to scrupulous reasoning.

For that reason, there is something mildly discordant about the authors’ hopeful tone, at least at the beginning of the book, suggesting that over the long term the court will prove a force for legal, cultural and social advancement. Of course, the pendulum of politics will swing, as it always has. But to the extent the authors seek to find in the Supreme Court a wellspring for advancing the American “Creed,” history suggests that they are fooling themselves.

The bright light of Brown continues to blind many political liberals, including apparently the authors. The sad truth is that for most of its history, the Supreme Court embodied far more of the “Caution” than the “Creed.” This is, after all, the institution that brought the nation Dred Scott and “separate but equal,” all but eliminated the right to free speech during World War I, struck down the heart of the New Deal and approved Japanese internment. As Amsterdam and Bruner masterfully illustrate, as the court itself proved again last week, the justices are not likely to return to the “Creed” any time soon. *

by Curt Leviant; Farrar, Straus & Giroux: 216 pp., $22