The Paradox of Judging

Julian Sanchez has a sharp observation about the Raich and Kelo decisions:

There's a famous philosophical puzzle, originally attributed to Eubulides of Miletus, known as the sorites paradox or heaps problem. It goes like this: Two or three grains of sand obviously don't constitute a "heap" of sand. And it seems absurd to suppose that adding a single grain of sand could turn something that wasn't a heap into a heap. But apply that logic repeatedly as you add one grain after another, and you're pushed to the equally absurd conclusion that 100,000 grains aren't a heap either. (Alternatively, you can run the logic in the other direction and prove that three grains of sand are a heap.)

It's not a terribly deep puzzle, of course: It simply illustrates that some of our everyday concepts, like that of a heap, are vague or fuzzy, not susceptible to such precise definition. Try to define such concepts in too much detail and absurdity results.

The problem is, concepts like "interstate commerce," "public use," "unreasonable search," and "cruel and unusual" are similarly fuzzy. And stare decisis, the principle that cases are to be decided by reference to previous rulings, means that the Court's interpretation of those rulings looks an awful lot like a process of adding one grain at a time without ever arriving at an unconstitutional heap—an instance of what law professor Eugene Volokh has called an "attitude altering slippery slope." Jurisprudence is all about distinguishing cases, explaining why some legal principle applies in situation A, but not in apparently similar situation B. But if the grains are fine enough—the differences from case to case sufficiently subtle—plausible distinctions become harder to find.

Sanchez then concludes that Raich and Kelo “prompted outrage not because either was a radical departure from precedent —neither was—but because they called attention to just how many grains of precedent had been piled atop the terms ‘public use’ and ‘interstate commerce,’ reaching so far from the common-sense meanings of those terms as to seem preposterous if one is only eyeballing the heap, rather than attending to the process.”

His conclusion is that “jurists need to be willing to step back and see the heap.”

This is an interesting problem. On the one hand, Sanchez is right that the Supreme Court’s Justices should step back on various issues and consider how far they have departed from the actual Constitution, even if each previous decision was but a little step.

At the same time, what if you had to make your kids obey a rule that said, “No heaps of sand in the kitchen”? If you took a fuzzy approach – banning anything that struck you as a “heap” – it might actually seem more fair than if you drew a line somewhere and said, “19 grains of sand is absolutely fine, but 20 grains gets your whole heap thrown out in the yard.” The whole point of the paradox is that you can’t draw lines like that.

In other words, if the Supreme Court issues a decision that says something like, “That previous federal regulation with a barely discernible effect on interstate commerce was upheld; but in this case, the barely discernible effect is just 0.1% less, and that’s over the line. Therefore, the regulation before us is struck down.” Wouldn’t that sort of a decision draw all sorts of denunciations as being unprincipled, or as being incapable of being distinguished from prior decisions, and so forth?

In other words, if the Supreme Court develops its jurisprudence in a long string of cases that are only as different from each other as a 19-grain sand pile is from a 20-grain sand pile, then wherever the Supreme Court draws the line will seem arbitrary.

Consider an example: Free speech. Question: Does “speech” include non-verbal conduct? If you want to be excessively formalistic, you could say, “Yes, speech means literal speech, so no non-verbal conduct counts.” But then what about semaphores? Morse code? Sign language? People have a number of ways to communicate that are like speech in every respect – even to the point of representing individual letters – but that are non-verbal. So if you deny free speech protection to those types of conduct, it seems excessively literal.

But then suppose you start down the road of giving free speech protection to non-verbal conduct. If you allow free speech protection to flag-waving, it would seem arbitrary to deny protection to flag-burning. In other words, you’re going to end up extending free speech protection to more and more types of conduct, for fear of seeming arbitrary in drawing a firm line somewhere.

And then you end up – as the Supreme Court has done, in fact – giving free speech protection to nude dancing or to computer-generated child p**n. At this point, it seems to me that we have entered the land of the absurd. And yet there was no point at which the Supreme Court could have drawn the line earlier without being either excessively literal or else arbitrary.

So it may be that the Supreme Court necessarily faces a choice between: 1) Excessive formalism (if it draws a bright line that totally cuts off any development in a particular direction); 2) Arbitrariness (if it draws a line somewhere in the middle), or 3) Making the heap ever bigger, so to speak (if it doesn’t draw a line at all, and so ends up wandering further and further from the actual Constitution).