10. Thinking by Metaphor

The problem with metaphors and anlogies is that if they're good, they become a substitute for thought.  Judges are very fond of the scale metaphor.  In this example, Justice Scalia manages to get "outweighed" and "[o]n balance" into consecutive sentences.  But, of course, the items on his imaginary scales ("The prophylaxis achieved by insisting upon a rigid, no-waiver application of the ordinance requirements" versus a "senseless prohibition of speech") are abstractions without weight.  

The scale metaphor's great virtue is that it disguises the judge's agency.  The pretense isn't that the abstractions can be weighed, but that a judge choosing between alternatives is engaged in a task as impersonal and objective as reading a scale. 

The Supreme Court's use of metaphor can become grotesque, as when the justices describe a 10-year-old girl's abused, frozen corpse as "fruit of the poisonous tree."  That phrase, one of the most familiar to criminal practitioners, is almost perfectly meaningless, because almost always there is no fruit, no tree, and no poison.  The phrase was coined, or rather imported into the criminal law, by Justice Frankfurter in the low point of his career, just two years after Disney's Snow White set an all-time box office record with its own poisonous fruit.  (This is, I believe, the only documented instance of a major criminal law doctrine being named after a plot device in a Disney film.)  It is only by thinking in terms of the fruit metaphor that, for example, judges can convince themselves that a person's consent to a police search can be simultaneously voluntary and coerced. 

The most powerful metaphor of all is the left-right spectrum.  It's difficult for anybody in the West to think about politics without mentally placing ideas or positions somewhere along the bipolar scale.  During the Cold War this meant that the Federal Republic of Germany (West Germany) was pinned to the right end of the scale, while the Democratic Republic was far to the left, although no one could seriously doubt that individual workers in West Germany had almost infinitely greater influence over their political and economic system than the comrades on the other side of the Wall.    Burke's opposition to the French Revolution makes him for all time a conservative, although no friend to liberal causes would claim the Terror, Empire and pan-European war for her side.

American political parties are coalitions rather than bands of the like-minded.  Both New Mexico's former Governor Gary Johnson and William Bennett find a political home in the Republican party.  But to say they belong together on the right end of the spectrum misses the whole point of their politics. 

Trying to squeeze a world of politics onto a linear scale becomes even trickier when you add the law to the mix.  People talk casually about liberal and conservative judges, but what do those terms mean?  New York Law School Professor James F. Simon says that "[t]he term 'liberal' is used to describe a justice who gives the political branches a wide latitude to effect social and economic reform".  But Joan Biskupic, the great Supreme Court reporter, sees it differently.  She says: "In the judicial context, a 'conservative' believes the courts should not involve themselves in social problems that are traditionally the province of legislators. "

They're both half-right, of course.  A judge "who gives the political branches wide latitude" to enact legislation favored by liberals is a liberal judge, while a judge who does the same with regard to conservative legislation is a conservative judge.  A homeowner cleaning out the attic will toss things into two piles, to keep or to throw away.  Professors and journalists do much the same with judicial rulings, sorting them into "liberal" and "conservative" heaps.  But it's a hopeless project.  The judiciary's ideological attic will always remain crammed to the rafters.

"Left" and "right" aren't places.  They aren't qualities inhering to objects.  They're abstract signifiers, like Oklahoma's red and Texas's burnt orange.  They could as easily be reversed.  To think seriously about politics, including the politics of judging, we first have to rid ourselves of the habit of thinking by metaphor.  In concrete terms, the critical distinction between political systems is in the concentration of power they permit.  Is political power concentrated in a single individual?  Or in a clique, or a party, or a single branch of government?  Is economic power exercised by the state, or by highly concentrated corporations?  Or is both political and economic power widely dispersed?

If we think in those terms, Simon's definition acquires another shade of meaning.  If it is in the power of Supreme Court justices to "give the political branches a wide latitude to effect social and economic reform", doesn't that mean the elected branches acquire their political legitimacy from the courts, not from the voters?