The Wheel Turns

My my, how the blogtopia wheel turns. A few days ago, A Crescat Sententia post directed me to the dissent in DeShaney v. Winnebago. Upon reading the case, I immediately was seized with the urge to blog on it. But I couldn't figure out a context to do it in. Although this is more of a commentary blog than a current events blog, I still make at least a perfunctory effort to blog on things relevant to on-going conversations.

Fastforward to today. A link from Balkinization points me to Ex Post and a long commentary of my own on torture. Scrolling down, I see this post on, what else, DeShaney! But the ultimate irony? It was also this post that got Crescat talking about the case in the first place. Oh what tangled webs we weave.

Anyway, back to the case. Ex Post's, er, post talks some about DeShaney, and some about the article accusing Blackmun of outsourcing much of his work to his clerks (something I am not at all interested in discussing at the moment). The part on DeShaney focuses on Blackmun's "compassion" paradigm for the judiciary. Phocion (writing for EP) thinks this is a very bad idea, and concludes his post by stating:

In the end, judging must be guided not by sympathy, but by logic, reason, and precedent. A judge must always be mindful that human sympathy can never be removed entirely from the equation, but that we are a government of laws and not of men. As such, morality and sympathy are simply not sufficient to decide concrete cases. If they are, we tread on dangerous ground, where one woman or man's sense of morality can trump the decisions that we the people have made collectively. Justice Blackmun is remembered foremost as the author of Roe; but he is also remembered as a gentle man. This new information must not only have us rethink his ultimate legacy, but should also have us question whether the psychology of human emotion and sympathy is a proper tool for judicial decision-making.

At first glance, this seems rather compelling. Sympathy is a wonderful attribute, but it isn't a standard, it allows for no predictability and makes law an outgrowth of the whims of a judge. Clearly, we need to base our decisions on laws, not human emotions like sympathy which are unquanitifiable and unpredictable.

Yet on closer examimination, I'm not sure this holds. There are two reasons for this. First, I'd contest whether "sympathy," as a rule, is any more or less predictable than other rules. Certainly, all the other "rules" we have are debatable and to an extent unpredictable, otherwise we'd never have circuit splits, have very little to argue about in Court, and far fewer lawyers. Meanwhile, sympathy, at least in this case, seems to be very predictable. Everybody talking about the case, from the majority to the dissent to Phocion seems to feel sympathy for DeShaney (who was beaten into a coma by his abusive father after Child Services refused to act on numerous signals that he was under threat). Indeed, it is hard to imagine anybody looking at the case and saying "screw Joshua." It seems in this case that "sympathy" would yield a very clear outcome. Obviously, in some cases, "sympathy" is far less obvious--but, I'd assert, that makes it no different from any number of the legal rules we apply without question.

The second question, though, is what do you do if the law specifically mandates us to look to non-quantifiable ideals? I'd argue that the 8th amendment does exactly that--what is "cruel" at least is somewhat subjective, it isn't something one can easily put to a brightline test. This pits the predictability/"rule of law" folks against themselves, they can obey the law and be subjective, or they can be predictable and rule as men instead of laws. This is clearly the situation Blackmun thought we were in, he specifically stated:

"The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence"

Blackmun thinks that the language of the 14th amendment mandates us to look from a sympathetic viewpoint. Far from drawing his philosophy out of whole cloth, Blackmun specifically links it into the constitutional scheme he is bound to follow. One might disagree with this interpretation, but accepting it as true for the moment, what then? Are we not bound to follow it anyway, predictability be damned?