82. Constitutional gibberish
The Supreme Court has introduced a great deal of gibberish into American criminal law. I'm not even talking about the secondary meaning of gibberish, "Unnecessarily pretentious or vague language", although there's no shortage of that, either. I mean the real thing, "Unintelligible or nonsensical talk or writing." These are just a few of the more familiar examples.
The Supreme Court has, on several occasions, spoken of "the Fourth Amendment's strong preference for searches conducted pursuant to a warrant". Several hundred cases in Westlaw's database use that or a similar phrase. But of course inanimate objects don't have preferences. Nor can the phrase be defended as a shorthand reference to a system of priorities established by the fourth amendment; the amendment doesn't say that one of its clauses is better than the other.
Back in his early days on the Court, Justice Stevens wrote about "a judicially developed, warrant-preference scheme", which recognized the obvious point that the preference involved was the Court's, not the Constitution's. But in later years, I'm sorry to say, even he wrote of "the Constitution's preference for cross-examined trial testimony." As to how he determined that the sixth amendment has preferences while the fourth doesn't, well, there's a reason the Supreme Court is so big on protecting its mystique. "It came down from the high priests, that's all you gotta know."
The Court has also stated, dozens of times, that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." The phrase has been repeated in literally thousands of other cases.
This is gibberish of a particularly high order, because of the multiple levels on which it fails to make sense. "Per se unreasonable" means an action is unreasonable regardless of the reason for it. It could be a Zen koan.
And not only are there many rather than "a few" exceptions to the supposed per se rule, but none of them are well-delineated. They can't be well-delineated, because they're an attempt to categorize reality before it occurs. Like definitions of fraud, they have to be fuzzy enough to encompass things that no one has yet thought of - least of all Supreme Court justices and their clerks, possessing as they do the combined street smarts of an entire litter of Labrador puppies.
And then the phrase simply contradicts what the fourth amendment itself says. The amendment's two clauses deal with different subjects, and the "per se unreasonable" rule combines them into a single substance, like mashed succotash.
A different type of gibberish is the description of cross examination as "the greatest legal engine ever invented for the discovery of truth", a phrase coined by the legendary Professor Wigmore (having a funny name definitely helps with the legend-building process) and used in 12 Supreme Court opinions and several hundred lower court opinions. It's one of those phrases that sounds grand at first and means very little on examination, because it's comparing cross-examination to all those other legal engines invented for discovering truth, such as, well, for example ....
Moving along, even as a metaphor it's difficult to conceptualize cross-examination - which, after all, is the same as direct examination, except with leading questions - as an engine in any sense of that word. And how can we say that someone invented the business of asking another person explain him- or herself? One might as well say the rising inflection at the end of the sentence is the greatest single engine ever invented for indicating a question.
Perhaps the greatest gibberish ever spouted by the Supreme Court in a criminal case is this masterpiece: "the often competitive enterprise of ferreting out crime." That phrase, I'm sorry to report, was coined by Justice Robert Jackson as if to illustrate Horace's observation that "even Homer sometimes nods." Jackson's phrase has since appeared in no fewer than 53 additional Supreme Court opinions, and close to a thousand lower court opinions in the Westlaw database, and yet if it has any meaning it's almost certainly not the meaning Justice Jackson intended.
"Ferreting" is itself a metaphor, and no doubt Jackson meant it in the sense of "hunting intensively", but I suspect part of the appeal of the phrase is the suggestion that the police are "weasellike, usually albino mammal[s] (Mustela putorius furo) related to the polecat".
Describing law enforcement as an "enterprise" is also double-edged. The word can mean "undertaking", which is perhaps justified, but Jackson's use of it to contrast the powers of ratiocination of police officers (not so good) with those of judges (much better) carries more than a hint of denigration. Would judges be happy hearing themselves described as engaging in an "enterprise"? I don't think so. In many respects the police and the judiciary are engaged in exactly the same work, a fact that for obvious reasons of class and prestige most judges prefer not to acknowledge; Jackson's phrase puts some distance between them.
But the crowning glory of the phrase is that adjective. Competitive with whom? Competing for what? It's true that police and sheriff departments sometimes battle for turf, and rivalries between officers or squads can lead to intra-department competition for recognition and promotion, and every type of cop resents the FBI, but I don't think any of that is what Jackson meant. He meant that cops compete with robbers.
Chief Justice Roberts famously claimed at his confirmation hearing that judges are like umpires. Roberts' metaphor was more explicit and thus more disingenuous (to use a favorite judge's word) than Jackson's, but both imply that controlling violent crime is a competition - a game. And that, I think, is the key to the phrase's popularity.
In sports, there aren't any good guys and bad guys. (Not even the Yankees.) If judges are umpires, their sole task is to assure that everyone has an equal chance of winning. And that means the judge has no moral responsibility for the outcome of any trial. And what could be more comforting than that?
Sunday, March 12, 2006 at 12:46PM in Judging the judges
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