January 01, 2018

Advance Sheet: The Morality of Dissent

Robert E. Shapiro

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The recent news that Court of Appeals Judge Richard Posner had decided to retire, effective immediately, sparked a fulsome round of encomiums regarding both Judge Posner’s service during the more than three decades he served on the Seventh Circuit bench and, a bit more tentatively, his impact on the law itself. There could be as little doubt about the latter as the former. The avatar of the law and economics school of legal thinking, Judge Posner’s critique of various venerable theories under antitrust law in particular was, and is, noteworthy. From the start, he challenged on economic grounds an earlier orthodoxy on such topics as resale price maintenance and boycotts, often causing the U.S. Supreme Court itself to change its thinking in the face of arguments better rooted in sound economic analysis. For that reason, the antitrust laws are now better directed to ensuring that business activity continues and is regulated in accordance with the needs of genuine competition, rather than abstract and even just plain wrong legal theorizing.

Less certain has been the permanence and goodness of Judge Posner’s effect on matters outside the antitrust statutes. Here the benefits of an economic analysis of the law are less certain. It is hardly a new idea that humans are rational animals who can and should be encouraged by the law to act in a fashion that makes good economic sense. So Professor (later Justice) Oliver Wendell Holmes, 100 years before Judge Posner, argued persuasively in his Origins of the Common Law that contracts should always be viewed as solely a rational choice between performance and damages. Whether the efficiency this approach brings to contractual analysis is the best for society’s moral underpinnings is now seldom debated, though far from clear. Thus, contemporary jurists, following a century of precedent, insist upon Holmes’s principle, disregarding formally the idea that who acted honorably should be the measure of anything in an ordinary contract breach. But they, and juries alike, often silently make their decisions based on who the “good guy” is.

So too the idea that such matters as punishment or tort law or other legal issues that Judge Posner trained his piercing intellect upon should be reconfigured on purely rational or economic terms is sometimes problematic. Such a conclusion is often undermined by our moral notions and ways of doing. To paraphrase Shakespeare, “the truth hath better deeds than words to grace it.” We show in our actions, contrary to our stated views, that matters of efficiency or efficacy are not our sole concerns. Our legal system has a way of circumventing such ideas, even if the words do have a way of having their impact, as indeed Judge Posner’s have as well.

Reasons for Leaving

More surprising, perhaps, than all the end-of-an-era talk about Judge Posner’s abrupt retirement was the reason he gave for it. One might have expected him to say that he was frustrated by his inability to effect lasting change or, conversely, that he thought he had done enough to set the economic analysis on a course of ultimate success. There might also have been fatigue or the lure of other interests or the like. Some of these were suggested in his remarks; none of them seemed to have been what did the good judge in. Instead, Judge Posner articulated as a principal reason his no longer being able to tolerate the kind of dissension that now is current on the court and in the courts generally. And herein lies a puzzle.

To be sure, this kind of explanation is hardly unusual these days. We hear it from retiring senators almost daily. Partisanship has gotten out of hand. But in judicial quarters too? Yes. Even a casual observer will have noticed how our culture of bad manners, so evident in political and social controversies, has now invaded the judiciary as well. So angular has gotten some of the rhetoric on even the Supreme Court that Chief Justice Roberts has seemingly created an entire jurisprudential theory based on rhetorical moderation. See Robert E. Shapiro, Can Moderation Give Us Justice?, 40 Litigation 56 (Winter 2014). What is true at the highest levels necessarily trickles down to (or may itself be the highest expression of) what goes on below.

What made Judge Posner’s comment most surprising, though, was not the reason cited but Judge Posner’s own contribution to it. Judge Posner was not always known for having dealt with his own Seventh Circuit colleagues with the utmost deference, as he reportedly informed them when first ascending the bench that he thought them insufficiently hard-working, thereupon taking for himself a one-and-one-half-sized docket. Nor did he pull any personal punches in oral argument. Many a lawyer found herself smarting from comments arising from Justice Posner’s acerbic wit and harsh tongue. More than one of his colleagues on the court, without perhaps even noticing it, was sufficiently impressed with his ability to skewer lawyers, if not always for the purpose of illuminating points better, to have picked up a similarly combative approach. Judge Posner was particularly sharp in his written opinions, which often did the advocate, as well as the advocacy, no favors.

Many observers were therefore struck by the coincidence of his resignation having been submitted just a few weeks after that of an equally eminent district court judge, the late Milton Shadur, with whom Judge Posner famously feuded in decision after decision, often using his superior position on the court of appeals to slap Judge Shadur and his reasoning down. Whatever the merits of the substantive argument between these two jurists, they carried it on sometimes immoderately, each sometimes contributing to the harsh character of the debate. Judge Posner’s reason thus seemed to be a bit like Stephen A. Smith taking umbrage at the sharp criticism of a fellow sports broadcaster.

This seeming lack of self-reflection and understanding is a kind of story all its own. Judge Posner’s kind of brilliance as a thinker and writer often comes with a high price, viz. an inability to see an opposing viewpoint as entitled to as much respect as his own. He might have said in his own defense that he did not suffer fools gladly, or at all, but how he could be so certain that others were fools is the real question. Too frequently in contemporary times, and not just in legal reasoning, there is a tendency to view a different opinion as nothing but a form of stupidity, irrationality, or depravity. In the seamless web of the law in particular, there is very little basis for such one-sidedness or confidence that one’s own opinion is necessarily the right one.

Understanding the Other Side

But too often the more gifted the mind, the less charitable the attitude. Some of the very greatest minds in history, like Einstein, Bach, and Plato, knew how to avoid these difficulties, but there is sometimes among even great thinkers less of an appreciation of the insufficiency of one’s own understanding. In the narrow case of ordinary legal practice, this is highly problematic, at best. Taking seriously the opposing party’s viewpoint should be a staple of good practice. One of America’s greatest lawyers, Abraham Lincoln, frequently said he spent all his time studying the other side’s case. It was, and is, easy enough to understand where your own client is coming from, not least because she’s the one paying your bill for advancing her cause. But the other side’s argument not only seems but must be proved wrong. To be successful, a good lawyer tries to understand what about her adversary’s case might seem right, or might prove or convince a jury to be so. The lawyer who indignantly treats his adversary as stupid, depraved, or insane will be ineffective at best.

But the principle stands for more than as a key to success in legal proceedings. It directly concerns our moral and political world as well. Again Lincoln is our best guide. In what is surely one of the most unusual speeches ever given by a successful war leader, Lincoln’s Second Inaugural Address, while asserting that the North had dealt with the South as it had been forced to do and was about to be successful, Lincoln wondered aloud how the North could know it had done the right thing. “Both [sides] read the same Bible and pray to the same God,” he stressed, “and each invokes His aid against the other.” The South, whatever its religious claims, seemed to have presented the most immoral of arguments in seceding to protect itself against a perceived threat to its peculiar institution. “It may seem strange,” Lincoln admitted, “that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces.” But don’t be so certain we were right: “Let us judge not, that we be not judged.” The only being that knows for sure what is right, and our own share of it, is the Almighty, and his ways are often inscrutable, even if “true and righteous altogether.” Man’s judgment, by contrast, is imperfect.

This analysis, an insistence by a natural genius of the insufficiency of human reasoning, is what leads to his famous peroration, so different from the message offered by Judge Posner. One needs to do right as God gives us to see the right, but how much of God’s gift you actually have, by contrast with your adversaries, is always a matter of uncertainty. As a result, one should approach the other side “[w]ith malice toward none, with charity for all.” Chief Justice Roberts’s moderation school has this as its bedrock or at least its inspiration.

These are difficult principles to put into practice. How difficult may be seen in considering the views expressed not too long ago about the demonstrations in Charlottesville, Virginia. Lincoln would have no truck with any violations of law or even anything that contributed to a climate of lawlessness. He expressed his strongest condemnation of any failure to abide by the law, including the supreme law represented by the U.S. Constitution, in his 1838 Young Men’s Lyceum address. Law-abidingness is a sine qua non of any society, especially a democratic or republican one. One might ask whether the prosecutors in the Charlottesville case made full use of the law’s powers, including its rules on assault, which requires only a threat of violence, in the midst of the activities of the right-wing demonstrators. Perhaps the impact of our contemporary First Amendment jurisprudence rightly weighed heavily on their minds.

But far more difficult and provocative is Lincoln’s assertion that we should not judge lest we too be judged. Is he saying we must treat those who marched in Nazi uniforms with respect and in a nonjudgmental way? If we are to show charity and bear no malice to Southern slaveholders, must we do the same for Nazis too?

Lincoln is not saying that one need accept such principles as right and true. You must do what’s right, “as God gives us the ability to see what’s right.” It is more a cautionary reflection. Nothing gives you certainty that you know what’s right. It is not sufficient that you find repugnant the opposing view expressed. Sixty years ago, those demonstrating for gay rights might likewise have been deemed repugnant by some, a view that has not stood the test of time and reflection. It is not that Nazi views might someday gain a comparable acceptance. It is rather that our own views need to be questioned and deepened at all times. Perhaps if we all step back from our views that we are certainly right, we can better understand the defect in the thinking of those opposing us. And the limits of our own understanding.

Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.