Joel Jacobsen

In Robert Lacey's very enjoyable Great Tales from English History (vol. I), a model of rigorous popular history (that's not an oxymoron, as most professional historians assume), we read this anecdote about King John:

It was not unusual for a medieval king simply to eliminate rivals, as John had done early in his reign when he imprisoned the son of his late brother Geoffrey, who was never to be seen again.  But when John heard that a noblewoman had been gossiping about Arthur's disappearance, he had the culprit jailed with one of her sons and left them both to starve to death.

This John was Robin Hood's (or, rather, Hobbehod's) nemesis, the prince who ruled as regent while his brother Richard the Lionheart was away stoking Islamic hatred for the benefit of posterity.  This same John was forced to sign the contract so sentimentalized in conventional English and American legal history as the Magna Carta.

Modern-day King Johns aren't nearly so arbitrary.  When they learn that a person is saying unkind things about them, they no longer throw the person into prison to starve to death.  Rather, they merely threaten to revoke the person's right to practice his or her profession.

That's what happened to Geoffrey Fieger, the famous newshound, lawyer and would-be politician from Detroit.  He made some rude comments about three judges of the Michigan Court of Appeals.  You can read the comments on pages 3 and 4 of this Michigan Supreme Court opinion.   They're rude in a wannabe-Howard Stern style, involving the use of the word "ass" and fairly predictable suggestions regarding both Fieger's ass and the asses of the judges.  He also suggested that the three judges had changed their names from Adolf Hitler, Goebbels and Eva Braun. 

(He didn't "liken" the judges to Nazis, as the Associated Press reported.   He said - assuming the Michigan Supreme Court reported his words accurately - that they actually were Hitler Goebbels and Braun, now living in Lansing under assumed names.  Thus, when the Michigan Supreme Court emphasized the importance of ensuring the public was not "misled" by Fieger, they were expressing their concern that citizens of their state would conclude that the Nazi honchos not only had mastered the art of delayed self-reincarnation but were engaged in a comeback via the Michigan Court of Appeals.)  (You have to admit, it's a pretty alarming prospect.)

Imagine for a moment that the Michigan Legislature passed a criminal libel statute that provided that calling an individual legislator a bad name is a criminal offense, punishable by a maximum $10 fine.  How many nanoseconds do you think it would take the Michigan Supreme Court to declare the statute unconstitutional?

But it's different when the judges' own asses are on the firing line.  In ruling that Fieger had no constitutional right to speak disrespectfully of judges' backsides, a 4-3 majority of the Michigan Supreme Court wrote:

In establishing rules designed to deter and sanction uncivil and discourteous conduct on the part of lawyers, we believe that this Court is doing far more than protecting the sensitivities of judges; rather, we believe that we are upholding the integrity of that which is being carried out by the judicial branch of government.

The performance of these responsibilities requires a process in which the public can have the highest sense of confidence, one in which the fairness and integrity of the process is not routinely called into question, one in which the ability of judges to mete out evenhanded decisions in not undermined by the fear of vulgar characterizations of their actions, one in which the public is not misled by name-calling and vulgarities from lawyers who are held to have special knowledge of the courts, one in which discourse is grounded in the traditional tools of the law - language, precedents, logic, and rational analysis and debate.  To disregard such interests in the pursuit of a conception of the First Amendment that has never been a part of our actual Constitutional would in a real and practical sense adversely affect our rule of law, a no less indispensable foundation of our constitutional system than the First Amendment.

Now, we must assume that Chief Justice Clifford Taylor, and the three justices who joined his opinion, are literate and intelligent people.  But as they cobble together ready-made phrases they seem hardly aware of what those phrases mean.  Are Michigan judges actually afraid of being called names?  It's hard to believe.  But if the judges aren't afraid of that, how could such a fear "undermine" their ability to perform their jobs competently?

"Undermine" in the sense in which Taylor used the word is a metaphor.  It refers to the ancient military tactic of digging beneath the walls of the besieged city.  It's what Grant was trying to do with the crater before Petersburg.  A person who uses the word to describe an effect on something as vast, diffuse and abstract as the ability of an entire class of people to perform its job competently is obviously not thinking about what he is writing.

I don't believe that Taylor meant what his rhetoric assumes to be a fact, that there are judges in Michigan so overcome by the fear of being called a bad name as to be unable to perform the most basic function of their jobs. 

So why did he say it?  Because he wrote his argument backwards.  (See post 137.)   That is, he reached his result first: that prohibiting the making of vulgar suggestions concerning the rear ends of judges is "no less indispensable [a] foundation of our constitutional system" than the Constitution itself.   Having committed himself to a conclusion whose only recommendation is the emotional satisfaction it affords judges, he had to search around for something - anything - that might at least disguise its indefensibility.

So he switched on the Latinism, turned verbs into nouns, packed 105 words into a single sentence and even went to the trouble of denying in one paragraph what he admitted doing in the following paragraph: he wasn't merely "protecting the sensitivities of judges", he was protecting judges from "the fear of vulgar characterizations of their actions". 

"The performance of these [judicial] responsibilities requires a process in which ..."  But in what sense are the five items on the list that follows this opening actually required?   Imagine for a moment that I were to say in this public forum that Taylor is, on the basis of this opinion, a barely-literate thug in a black robe incapable of thinking his way out of a paper bag.  If I said that, would the Michigan judicial system shudder to a halt?  Since I did say it, can everyone with a Monday morning court date in Detroit just stay home?  No?  Well, then, I guess suppressing such talk isn't really required, is it, Mr. Chief Justice?

Compare Taylor's 105-word sentence to the Lacey quote with which I started this post.  Lacey speaks clearly and directly.  Taylor is hardly coherent.  Yet what Lacey describes is remarkably similar to what Taylor is doing.