Joel Jacobsen

Metaphors and similes are a step removed from reality.  That's their point, and why it's a mistake to think in them.  It's one thing for a politician to describe geopolitical strategy in football terms by saying it's a question of whether the nation plays offense or defense.  But it's another thing for the leader of a country to believe that the purpose of all that global strategizing it to move the ball toward the goal.

Lawyers and judges are trained in a mechanical style of cogitation that isn't quite the same as thinking.  The use of metaphor simplifies that process, because it makes it easier to fight off the intrusive realization that reality isn't cooperating.   In Kevin Flynn's Relentless Pursuit (see post 245), there's a hilarious, awful moment when the judge starts talking about Snow White and the poisoned apple:

"The illegal activity by the police commenced when the PG County police took the man out of the truck, had him out on the ground and in handcuffs.  That's when he was arrested.  And that's when the poisonous tree got planted. ...  The issue is the evidence, the physical evidence.  I found the poisonous tree, and I found how far its roots went.  Now, I want to go through the evidence and determine which evidence either is on the tree or off the tree."

This sounds like gibberish because it is.  What was once a metaphor had, by the time the judge uttered this string of vocables, long since been transformed into more or less random sounds used to signify nothing but the impending exercise of power.

Is that too harsh?  Then explain, please: In how many ways is the nighttime police stop of a person suspected of killing two people, and taking one of their hearts with him, like a tree?  In what respects is looking into the interior of a truck like fruit?  Quick now: list three ways in which a felony stop resembles the roots of a quince bush.

I once heard Charles Addams say in a TV interview that psychiatrists used his famous skier cartoon to test a patient's reality testing.  If the patient could explain it, the doc knew there was a problem.  The questions in the preceding paragraph might serve the same purpose.  But Addams was being funny.  Flynn's judge was deadly serious.

Lawyers and judges don't even notice when their metaphors become meaningless, because the metaphors are used, not to convey thought, but to provide an outward sign of a mechanical mental activity.  The dead metaphor signifies that the speaker is following the ruts in his or her mind, ruts as deep and impervious to passing seasons as the ruts of the Santa Fe Trail.  (Resist the temptation to think about those ruts gradually wearing away, and the landscape of your mind being restored to pristine rationality, as the soothing waters of this blog wash over them.) 

The most pervasive metaphor distorting judges' thinking is the scale.  There's a scale on every courthouse in the country.  (In front of Albuquerque's Metropolitan Court, we have a huge, remarkably ugly scale sculpture that moves, with the all-too-metaphorical result that it often dips out of balance.) 

American judges like to say - they've said it thousands of times, often with exactly the same string of words - that whether the arrest of a suspect or the seizure of evidence is constitutional "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers."

Picture the clerks huddled around a triple-beam balance scale inside the Supreme Court building.  There's a tense silence until the needle's quivers cease, when one of them speaks up in a voice hoarse with tension: "Scalia's people say the individual's right checks out at 4.581 grams, but all we're getting is 4.215.  I say the public interest definitely tops that.  Who's with me on this?"

When the justices say "balance," they mean: "a choice."  They mean: We decide which is worse, letting the cops get away with what they did, or letting the criminal get away with what he did.

It's not hard to see why judges are uncomfortable with coming right out and saying it.  If you were to ask bluntly: Which is worse, what John Couey did to Jessica Lunsford when he buried her alive, or what the Citrus County deputies did to John Couey when they listened to him confess?  - then you'd have to be some kind of monster to answer the way our courts routinely do.  (You can listen to Couey's suppressed confession here.)  So, obviously, the question can't be asked that bluntly.

Justices Jackson and Frankfurter once hinted that the exclusionary rule should be applied along a sliding scale, by which constitutional rights are viewed not as absolute but as relative, a person accused of a violent crime having fewer rights than one accused of running a numbers game.   Justice Stevens revived the idea in 2001.

But few judges are willing even to start down this road.  If constitutional rights are relative, then judges applying the non-textual exclusionary rules have a choice about how to rule.  They're morally responsible actors.

How much pleasanter to hide one's agency from oneself behind those draping strands of familiar, meaningless syllables.