Knowledge And Decisions

The notion that the death penalty is applied with caprice — as distinguished from bias — is an argument from ignorance. Observers do not know why some juries decided one thing and another jury decided something else. Since there is no institutional provision for juries to articulate their reasons — much less coordinate the articulation of one jury’s findings with those of other juries — the absence of such a pattern is hardly surprising. To say that an observer does not see a pattern is not to say that there is no pattern. A motorist driving down a highway or through town may see no pattern in the location of hamburger stands, but an executive in the headquarters of McDonald’s or Burger King might be able to show him that these locations are by no means random or capricious. Indeed, the mark of a specialist in any field is the ability to discern patterns which escape common observation. For many areas of human experience, there are no specialists or experts because no one is prepared to invest the time and effort needed to discover patterns in those areas. In an area such as jury verdicts, where reasons would be difficult to accurately articulate, where they are not required to be articulated, and where there are indeed restrictions on such articulation in public, to consider the absence of an apparent pattern among juries a sign of “freakish” decisions and arbitrary choices is the arrogance of asserting that what one does not discern does not exist. And to make that the basis of a constitutional ruling is to impose the arrogance of an elite on the rest of the country as “the law of the land.”

CONSTITUTIONAL INTERPRETATION

Over and beyond questions of the wisdom, effectiveness, or efficiency of legal decisions regarding free speech, race, crime, and other vital concerns, is a larger question of the role of law, and particularly of “a government of laws and not of men.” Considering the centuries of human suffering, struggle, and bloodshed to escape arbitrary tyranny, it is hardly surprising that there should be profound anxiety about the erosion or circumvention of that ideal. At sporadic intervals in history, the Supreme Court of the United States has been the center of storms of controversy, involving not only the merits of particular decisions, but also the fear that its role of constitutional interpretation was being expanded to judicial policy making — representing a threat to the very rule of law which it is supposed to epitomize. Such apprehensions go back to Marbury v. Madison in 1803, which established the Supreme Court’s power to invalidate the laws of Congress as unconstitutional, and have surfaced again in such cases as the Dred Scott decision in 1857, the “court packing” controversy of the 1930s and Brown v. Board of Education in 1954. But while modern controversies surrounding the Supreme Court are not historically unique, what has been unique is the frequency, scope, and sustained bitterness of controversy engendered by a whole series of court decisions reaching into every area of American society. What has also been unique is that Warren Court partisans — notably in the law schools — have not only accepted but advocated judicial policy making as a Supreme Court function, urging it to more openly pass judgment on the wisdom and morality of congressional and presidential actions, under broadly conceived constitutional “values” rather than narrowly explicit constitutional rules.²⁹⁸