By Ken Krayeske • 12:45 PM EST
Protestors at President Bush's January 2001 inauguartion let the Supreme Court know what they think of the unsigned (or per curiam) opinion in Bush v. Gore. We still don't know who among the Supremes wrote that decision, nor will we ever.
The branch of legal critique known as Critical Legal Studies posits that law is merely a linguistic fig leaf to rationalize oppression. I spend hours and hours every day reading decisions that parse words, and every day grow more convinced that Critical Legal Studies is right.
One class evidencing this is administrative law – the branch of legal theory which governs agencies like the Environmental Protection Agency, the National Labor Relations Board, The Securities and Exchange Commission, the Federal Communications Commission, etc.
Last week, we read a case from 1988 about the legality of a retroactivity formula used by the Department of Health and Human Services to recalculate payments and collections from hospitals for contracts from years past.
My professor, brilliant and well-versed, asked me if I thought it rational that DHHS gave the hospitals notice the formula was changing.
Sure, I said, it is reasonable to allow such an alteration if the hospitals know in advance formula for past years was changing. But what is crazy, I said, is that the government here is taking money from hospitals. Classmates laughed, more in approval and surprise than mocking of me (which has happened before).
And the class discussion returned to the arguments of Bowen v. Georgetown. I sat awestruck by the absurdity of the policy, and the enabling devices created by the law to justify taking money away from hospitals. I didn’t come to law school to learn how to bankrupt health care.
If I wasn’t in that class, no one else would have voiced that concern. I employ Critical Legal Studies in class because it says that where there are 5-4 opinions in the Supreme Court, it means that logical minds can arrive at two completely opposing, yet seemingly correct answers to the same legal problem.
Therefore, something else, like the ideological bent of the justices, or even what the justices had for breakfast, influences their decisions, and is in reality the real reason for the court’s holding. Pick any 5-4 decision, like, say, Bush v. Gore, and consider that more than legal wrangling with precedent came into play.
Or take the case we read for Tuesday, Nov. 11, Allentown Mack v. NLRB, from 1998. Justice Antonin Scalia wrote the majority opinion in a 5-4 decision.
Basically, Allentown Mack was a truck dealership with 32 unionized employees. New owners came in, inherited the union, and told people they were only rehiring 23 employees. They conducted job interviews with all union employees.
Based on what these staffers said, the new owners didn’t believe the union had majority support. The new owners had three choices by law: to request a formal, NLRB supervised election, to unilaterally stop dealing with the union, or to conduct a straw poll to verify their assumptions.
The last two options required the new owners to have good faith reasonable doubt about the support the union enjoyed. Allentown Mack argued that if so, they could just not deal with the union, and they have no incentive to poll. To hedge their bet, they polled anyway, under the supervision of a Roman Catholic priest. The poll rejected the union.
The union filed an unfair labor practice claim with the NLRB, claiming the poll was flawed. The owners could not have good faith reasonable doubt because their doubt originated from job interviews. Who in an interview is going to say they want a union if they know that opinion will take bread off their table?
The NLRB says no one, and forever has ruled that conclusions about union support gleaned from interviews are biased. The NLRB ruled for the union.
Enter Scalia. He and his brethren justices sat in judgment of the NLRB’s ruling. This is where lawyers become the priests of civil society, and where the argument gets so technical as to frustrate and aggravate the average citizen, and drive the law student crazy.
Scalia’s logic focused what is reasonable doubt. The NLRB forever has ruled reasonable doubt is disbelief, a relatively high hurdle to surmount. But the NLRB has never expressly said doubt equals disbelief.
That under-the-table dealing is atrocious, and deeply offends Scalia. As if there aren’t a million other things to be deeply offended about, but Scalia preserves his ire for the NLRB, and consults a modern dictionary for textual support. A dictionary says that doubt means uncertainty, which Scalia translates into a lower standard of evidence.
Scalia prides himself on being a strict constructionalist, an originalist who maintains that the only appropriate view of the Constitution comes from words within that Constitution. Originalists, if they need to identify the meaning of the Constitution, look to documents written by the Framers, or contemporaneous texts, like a 1787 dictionary.
The standard criticism issued of Roe v. Wade by strict constructionalists like Scalia is that Justice Douglas looked outside the Constitution to find support for a right to privacy that just doesn’t exist inside the text of the Constitution. Scalia does exactly that here. He looks to a modern dictionary for advice.
He is going outside his range of professed views. Consistency, as Ralph Waldo Emerson said, is the hobgoblin of small minds, and no one can argue that Scalia is not a towering intellect. Brilliant, but intellectually dishonest.
Scalia’s worst judicial sin here is hypocrisy. He criticizes the NLRB for saying one standard of evidence – doubt – and then applying disbelief. Then, he does the same thing.
The standard of review over the NLRB’s decision Scalia chooses is deferential, a jury standard of reasonable inference from the whole record of the evidence. Then, Scalia gets into nitty-gritty facts of the case, and discusses evidence, names and conversations and what the implications are.
That, my loyal readers who have plowed through this horrible amount of legal bull, is a much higher standard, like a judge-based trial standard of clearly erroneous.
To me, parsing the difference between “reasonable inference” and “clearly erroneous” is the fig leaf revealed by Critical Legal thought. Both phrases are opaque that will wear whatever meaning a skilled legal wordsmith will dress them up in.
Scalia, that skilled wordsmith, doesn’t like unions and is looking for ways to justify his smashing union advantage. Scalia’s anti-union animus earned five votes, and the dissent in Allentown Mack, written by Justice Stephen Breyer, only got four.
Breyer destroys Scalia’s reasoning. None of this matters to the man in the union, who doesn’t care about the difference between disbelief and uncertainty, between reasonable and erroneous. The man in the union cares about how he can protect his wages, insure his health and feed his family.
Government, most importantly, the judiciary, should respect that, and balance the interests of the working person with those of the owner of the truck company. But it always seems like Bush, industry and capital sit on the winning side of these 5-4 decisions.
Law school teaches aspiring adjudicators that the logic justices like Scalia utilize to reach their decisions is the important thing. Forget the ideology driving Scalia’s cherry pick of his logic, professors say.
I can’t. And I argue about it in class every chance I get, because I stand wary of such indoctrination, and hope that other students see through the veil as well.