Justin Driver, a law professor at the University of Chicago, is the author of “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.”
In May 1944, as the nation waged World War II, Judge Learned Hand delivered a brief, stirring address before an immense crowd in New York City for an event titled, “I Am an American Day.” Hand, perhaps the nation’s foremost jurist never nominated to the Supreme Court, memorably proclaimed: “The spirit of liberty is the spirit which is not too sure that it is right.” Yet, in the actions and opinions of most judges, this spirit of liberty is conspicuously absent.
Judges may acknowledge complexity and even uncertainty when deliberating in the privacy of chambers, but they almost invariably strike a pose of overweening certitude in their official actions.
“Judicial opinions are notoriously — even comically — unequivocal,” Prof. Dan Kahan of Yale Law School noted in the Harvard Law Review. “It is rare for opinions to acknowledge that an issue is difficult, much less that there are strong arguments on both sides.”
Against this backdrop, “Tough Cases” stands out as a genuine revelation. At its best, this collection of essays — written by 13 judges who served, or are serving, on various lower courts — candidly reveals that legal questions do not always admit one-sided answers. The editors, Russell F. Canan, Gregory E. Mize and Frederick H. Weisberg, contend in a brief introduction that the volume aims “to demystify judicial decision-making and to make the process accessible to ordinary people, who would not otherwise get a ringside seat.” The book succeeds on this score, and thus provides an invaluable public service, as the judicial branch is perpetually shrouded in mystery. Even more important, though, several judges go further by shedding the self-serving, wholly unrealistic pretense that legal interpretation never confronts shades of gray.
In one chapter, Judge Robert H. Alsdorf of Washington state discloses that in his written opinions he identifies when losing litigants have marshaled compelling arguments — even if they ultimately did not carry the day.
When crafting opinions, Alsdorf writes, “I try to explicitly note for the losing party how laudable . . . its . . . legal argument is, and then give a straightforward explanation of why that factor nonetheless cannot be used by the court to justify a ruling in its favor. . . . We can acknowledge this without losing any judicial power.” In other words, admitting complexity and the power of competing legal arguments in decisions should not be mistaken for indecision. To the contrary, as Kahan has observed, such acknowledgments may indeed serve to enhance legal legitimacy — rather than erode it — by communicating to disappointed parties that the judge has truly heard their claims.
Many of the cases that judges identify here as posing exceedingly difficult questions arise from family-based disputes. Some take readers behind the scenes of nationally prominent cases, such as the custody of Elián González and the removal of life support for Terri Schiavo. Many of the most penetrating essays, however, explore more obscure legal disputes.
In one haunting example, Judge Frederick H. Weisberg presided over the trial of Banita Jacks, 33, who was convicted of murdering all four of her daughters in Washington, D.C. If the underlying crimes were not grisly enough, Jacks was found living with her children’s remains. The decomposing bodies were discovered only after an eviction crew encountered the overpowering stench of death. Jacks claimed that her children had died in their sleep during several inexplicable days. Jacks’s role was not much in doubt, but Weisberg had to grapple with whether to honor the defendant’s desire to waive her insanity defense. His extended colloquies with Jacks — who, strikingly, appeared rational and even shrewd at times — are nothing less than riveting. Even readers who disagree with the judge’s decision to permit the insanity waiver will be forced to admire the candor with which he discusses the issue’s competing considerations.
In another case, outside the realm of the family, Judge Russell F. Canan coaxed a defendant who had pleaded not guilty — and who Canan believed was not guilty — into accepting a guilty plea. Canan maneuvered in this fashion to avoid the jury’s verdict, which he feared would be guilty. “I had orchestrated a turn of events that scared [the defendant] — at the threat of five years of hard time, and with the unsaid promise from me that he would not go to prison — into pleading guilty to something I felt he did not do,” Canan writes. “I had crossed a line to do the right thing under severe pressure in exceptional circumstances.” Such judicial confessions of error are incredibly rare — and, therefore, to be prized.
Regrettably, none of the 13 contributions was written by a U.S. Supreme Court justice or even by a federal circuit court judge. The legal profession is intensely hierarchical, and nowhere is this hierarchy more prevalent than within the judiciary. That dynamic is unsurprising, of course, because much of what lower courts do is apply precedents articulated by higher courts. “Tough Cases” vividly illuminates, however, that lower court judges have much to teach members of the most elite reaches of the judiciary about the importance of acknowledging complexity and difficulty. Our most distinguished judges should follow the lead of this groundbreaking volume by publicly acknowledging their own tough decisions — at least if they wish to honor the spirit of liberty.
Edited by Russell F. Canan, Gregory E. Mize, and Frederick H. Weisberg
New Press. 280 pp. $26.99