Reason in Law

By Lief H. Carter and Thomas F. Burke

Newly updated ninth edition: “A superbly written, pedagogically rich, historically and conceptually informed introduction to legal reasoning.” —Law and Politics Book Review

Over the decades it has been in print, Reason in Law has established itself as the place to start for understanding legal reasoning, a critical component of the rule of law. This ninth edition brings the book’s analyses and examples up to date, adding new cases while retaining old ones whose lessons remain potent. It examines several recent controversial Supreme Court decisions, including rulings on the constitutionality and proper interpretation of the Affordable Care Act and Justice Scalia’s powerful dissent in Maryland v. King. Also new to this edition are cases on same-sex marriage, the Voting Rights Act, and the legalization of marijuana. A new appendix explains the historical evolution of legal reasoning and the rule of law in civic life. The result is an indispensable introduction to the workings of the law.

• Language: English
• Publisher: Open Road Integrated Media
• Release date: Mar 4, 2016
• ISBN: 9780226328218

Book preview

Reason in Law

Reason in Law

9th Edition

Lief H. Carter and Thomas F. Burke

Foreword by Sanford Levinson

The University of Chicago Press

Chicago and London

Lief H. Carter is professor emeritus of political science at Colorado College. In addition to the previous eight editions of Reason in Law, he is the author of several books, including Administrative Law and Politics. Thomas F. Burke is professor of political science at Wellesley College and a visiting scholar at the University of California, Berkeley. He is the author or coauthor of three books, including, most recently, How Policy Shapes Politics.

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2016 by The University of Chicago

All rights reserved. Published 2016.

Printed in the United States of America

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ISBN-13: 978-0-226-32804-1 (cloth)

ISBN-13: 978-0-226-32818-8 (paper)

ISBN-13: 978-0-226-32821-8 (e-book)

DOI: 10.7208/chicago/9780226328218.001.0001

Library of Congress Cataloging-in-Publication Data

Carter, Lief H., author.

Reason in law / Lief H. Carter and Thomas F. Burke ; foreword by Sanford Levinson. — 9th edition.

pages cm

Includes index.

ISBN 978-0-226-32804-1 (cloth : alk. paper) — ISBN 978-0-226-32818-8 (pbk. : alk. paper) — ISBN 978-0-226-32821-8 (ebook) 1. Law—United States—Methodology. 2. Law—United States—Interpretation and construction. 3. Law—Political aspects—United States. I. Burke, Thomas Frederick, author. II. Title.

KF380.C325 2016

340'.11—dc23

2015018042

Earlier editions of this book were published by Pearson Education, Inc. Any questions concerning permissions should be directed to Permissions Department, The University of Chicago Press, Chicago, IL.

♾ This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

To Nancy, always

—Lief Carter

To my father, Fred Burke, a man of uncommon kindness, generosity, and spirit

—Tom Burke

I was much troubled in spirit, in my first years upon the bench, to find how trackless was the ocean on which I had embarked. I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile. I was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own mind and conscience. . . . As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable. I have grown to see that the process in its highest reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and fears, are part of the travail of mind, the pangs of death and the pangs of birth, in which principles that have served their day expire, and new principles are born.

What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals? Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions. I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life. There, before us, is the brew. Not a judge on the bench but has had a hand in the making.

—Judge Benjamin N. Cardozo, The Nature of the Judicial Process

Contents

Foreword by Sanford Levinson

Preface to the Ninth Edition

Chapter 1

What Legal Reasoning Is and Why It Matters

Chapter 2

Change and Stability in Legal Reasoning

Chapter 3

Common Law

Chapter 4

Statutory Interpretation

Chapter 5

Interpreting the U.S. Constitution

Chapter 6

Law and Politics

Appendix A

Introduction to Legal Procedures and Terminology

Appendix B

A Theory of Law in Politics: The Case of Terri Schiavo

Index of Cases

Index

Footnotes

Foreword

I am pleased to write a few words about what is truly an outstanding book, Reason in Law. Although I am not a rigorous Darwinian, it nonetheless is worth noting that the very fact that you hold in your hand the ninth edition is a testament to its ability to survive—indeed, to flourish—in a very competitive world. Most books suffer the sad fate immortalized in David Hume’s lament (which turned out to be false) that his books fell stillborn from the press. It is no small matter for a book to establish itself as a classic, which Reason in Law is, and to live unto the next generation.

Central to any explanation for its survival is that both Lief Carter and his more recent collaborator, Thomas Burke, have an ability to write with admirable clarity about complex issues in legal analysis. As a professor of law, I can vouch for the fact that they introduce central topics in an extraordinarily reader-friendly way. Whether one is interested in classic common law reasoning, statutory interpretation, or my own specialty, constitutional interpretation, there is much to savor in this slim book.

The authors clearly admire law as a means of dispute resolution that serves to preserve social peace and order. But, of course, commands issued by an all-powerful Hobbesian sovereign could serve this role. As suggested by the American author Ring Lardner, ‘Shut up,’ he explained is an ever-present possibility when responding to someone dissatisfied with the way he or she is being treated. Every parent has taken refuge in such a posture, and every child no doubt has felt frustrated by the perceived failure to be taken seriously. One might suggest that much of the conflict between police and the subjects of policing is the perception by the latter that they are given insufficient reason to submit to police commands, coupled with the perception by the former that their authority is constantly being threatened. Carter and Burke know that shut up is indeed inadequate. Winners may be delighted simply to be told, You can do what you’d like, but losers want to know why they have lost. Receiving an adequate answer is essential to believing that one is being treated with the proper concern and respect that political philosophers John Rawls and Ronald Dworkin have identified as the essence of a defensible political order.

Reason in Law is based on the assumption that someone actually reads judicial decisions, and that the quality of reasoning will assuage the feelings even of those who disagree with the outcomes. Who reads judicial opinions is, of course, an interesting question in itself. Carter and Burke appear to agree with political scientists like Gerald Rosenberg that members of the general public rarely read judicial decisions; the public’s responses are far more likely to depend on the bottom-line result—and how that result is portrayed in the popular press—than on the chain of legal reasoning supporting it. For better, and undoubtedly, for worse, one can be confident that very few Americans actually read various judicial decisions on such hot-button issues as the constitutionality of Obamacare or how to construe the Religious Freedom Restoration Act with regard to the duty of the state to exempt from the ordinary operation of the law those who claim inconsistent religious commitments. The authors admit that this is true as well with regard to the Terri Schiavo case, which is so carefully discussed in appendix B, culminating in the opinion by the obscure Judge Greer that is praised by the authors as a model of legal reasoning and, in their terms, legal game playing at its best. What one can be certain of, though, is that the lawyers involved in specific cases will surely read the opinions, and that it is particularly important that the losers in such cases feel at least somewhat less discontented after reading the Court’s explanation of why they lost. Indeed, one function of lawyers in such instances is to assuage their client’s anger by noting the strengths of the opinion. (Of course, this is a special difficulty for any lawyer who, by overestimating the strength of the case, leaves the client totally unprepared for loss.)

The central question posed by Carter and Burke is whether it is utopian to believe that judges can resolve disputes by using legal reasoning that gains the respect of all members of a community. Do we have sufficient faith in those who inhabit judicial office to respect a decision that goes against us even when we are deeply committed to the losing side? This is an empirical question. One can easily imagine communities in which such faith in law and legal officials exists. But, of course, it is as easy to imagine communities rent by a variety of cleavages, in which one trusts neither the law nor those who purport to interpret it. This may well describe the contemporary United States with regard to a host of issues that are the subject of litigation. Consider in this context the suspension in 2005 by Harvard professor Laurence Tribe, surely one of the most distinguished constitutional lawyers of our time, of a proposed three-volume third edition of his classic treatise American Constitutional Law, the first volume of which had come out in 2000. What accounted for his throwing in the towel? According to a letter from Tribe to his friend and former colleague Supreme Court Justice Stephen Breyer, I’ve suspended work on a revision because, in area after area, we find ourselves at a fork in the road—a point at which it’s fair to say things could go in any of several directions—and because conflict over basic constitutional premises is today at a fever pitch. This means that it is basically foolhardy to attempt to ascertain answers to a variety of important questions, given that all purported answers are passionately contested, with little common ground from which to build agreement.¹ Carter and Burke make much of the analogy between law and games. I have my own reservations inasmuch as we all know what It’s only a game means; that is, a game is an entirely closed world with no genuine consequences beyond itself, save for the pleasure or dismay of fans of a team or a particular player. That is not true, of course, of law. But, even if one accepts the analogy in full, might not Professor Tribe’s observation of the present state of constitutional law remind one of a baseball fan faced with the different rules of the American and National leagues concerning designated hitters and the changes that generates in the nature of the classic game? Are the two leagues playing different games or simply two quite radically dissimilar versions of what is, at the end of the day, the same game, as proved by the continuation of the World Series and the willingness to play by the different rules depending on the home team?

Judicial reliance on previously decided cases, as Carter and Burke clearly acknowledge, presents a special problem for reason in law. The paradox of precedent is that what might be called pure precedent-based argument is strongest precisely when the precedent is least persuasive or reasonable. If one agrees with a precedent, then one isn’t really following precedent; one is doing what one’s own reason suggests is the right thing to do. A strong precedentalist will follow the prior decision even when it appears unreasonable or simply wrong. Whether this constitutes reason in law is, of course, an important question! The deference that is due to the determination of former judgments, wrote Jeremy Bentham, is due not to their wisdom, but to their authority. And one should certainly take note of one of the most famous passages in Oliver Wendell Holmes Jr.’s The Path of the Law, perhaps the most important speech on law in American history. Speaking to the students and faculty of Boston University Law School in 1897, Holmes thundered: It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. One suspects that Carter and Burke would agree. They are scarcely uncritical devotees of what might be termed almost mindless stare decisis, such as that exhibited by the Supreme Court in the baseball cases that Carter and Burke draw on in their own discussion. At the very least, it should be clear that legal opinions call for critical analysis, and not for thoughtless acceptance. And what some admirers call the genius of the common law includes, especially in the United States, the willingness of innovative judges to know when even well-established decisions should be overruled, often because of changes in the surrounding society that have made them hard to defend in any terms other than almost literally thoughtless adherence to the status quo.

Critical analysis is encouraged by one very strong feature of the American legal system that is illustrated throughout this book: American judges, to a degree unusual among the world’s legal systems, are institutionally encouraged to write dissenting opinions. This is no small matter. The European Court of Justice, for example, issues only one opinion, in the name of the Court, as was the case in Germany prior to 1971 and is the case today in other countries, such as Greece and Ireland. The presumed reason is that the possibility of a dissent, which can sometimes be quite harshly written and accuse the majority of exhibiting unreason in law, works to undercut the faith of the citizenry—and especially the losers—that they have been treated with the dignity they wish. There is more than one dissent in the pages of the United States Reports, for example, that basically accuses the majority of being closer to Ring Lardner’s character than to what is required of what we might label a Carter-Burke model judge. Readers might ask themselves if the critical stance that is so much a feature of this book would be possible if Carter and Burke offered only unanimous opinions or suppressed the fact that there were vigorous—and often utterly convincing—dissents.

There is one last point worth mentioning. If I have a disagreement with the authors, it is in the extent to which law is identified as the work product of judges. In the American constitutional system, it is not only judges who are invited to become constitutional interpreters. Presidents and members of Congress must wrestle with their own oaths of office, which require fidelity to the Constitution—and not simply to the Constitution as interpreted by the majority of the Supreme Court. This casts into sharp relief the importance of President Andrew Jackson’s statement in his famous 1832 veto of a bill renewing the charter of the Bank of the United States, whose constitutionality had been affirmed in John Marshall’s classic opinion in McCulloch v. Maryland (1819). Jackson disagreed: "The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve (emphasis added). And in a republican" political order like the United States, which emphasizes the importance of participation by all citizens in civil governance, individuals themselves must develop confidence in their own capacity to critically analyze public officials’ assertions about constitutional meaning.

Appendix B quotes a number of politicians and interest-group advocates issuing truly cringe-producing statements; Judge Greer’s statement is indeed a relief for most readers. But is it really the case—perhaps it is!—that only judges will be able to play the game of constitutional fidelity truly well while everyone else succumbs to one or another temptation to cheat in order to make sure that the right team wins? Very few readers of this book will become judges, but almost all will become citizens. Its fundamental importance is therefore not vocational job training, but rather enabling each and every one of you to become a more effective citizen by deciding which standards of reasoning a court (or any other constitutional interpreter) must meet and what follows if one is not persuaded.

Sanford Levinson

W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas Law School, and Professor, Department of Government, University of Texas at Austin

Preface to the Ninth Edition

Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing happened.

—Winston Churchill

From: Lief Carter

Sent: Tuesday, January 14, 2015

To: Tom Burke

Subject: Preface

Tom, I think we can make our hard deadline tomorrow with our new publisher—all praise to the gods for the boon of John Tryneski, Rodney Powell, Katherine Faydash, and the superb University of Chicago Press staff—if we can just knock off this preface now. Any ideas on what you would like to see in it?

From: Tom Burke

Sent: Tuesday, January 14, 2015

To: Lief Carter

Subject: Preface

Lief, you’ve been doing prefaces for this book since I was in the ninth grade. I’m sure you will do fine. Just remember to keep your unhappiness at some recent Supreme Court decisions in check. This has never been a book for the legal professionals and scholars who are trying to make a case. We’re here to give our readers the tools to make up their own minds about whether a decision is well-reasoned. We promote the value of impartiality throughout the book, and we show how easy it is to achieve it. We have to practice what we preach, or we’ll be guilty of the charges of partisan bias that you want to lay on some Supreme Court justices. We don’t want to resemble the corrupt umpires and referees we rightly condemn for deciding who will win the game before they see it played. Besides, most appellate judges do a perfectly decent job most of the time; the Supreme Court is just, well, different.

From: Lief Carter

Sent: Tuesday, January 14, 2015

To: Tom Burke

Subject: Preface

Of course you’re right. It’s just that the Court gets a lot of press, and it does have the unique power of the final say. I keep thinking about that quote now posted in the United States Holocaust Memorial Museum, the one that starts out, First they came for the Socialists, and I did not speak out— / Because I was not a Socialist. Paul Freund once wrote something to the effect that the only virtue more noble than a bias against bias is a bias against bias against bias. Well, I agree with him. When we criticize a judicial decision, we do so in terms of the craft of good reasoning rather than our personal political beliefs. Anyway, my personal political beliefs probably change some every day. But this book is swiftly moving to become your baby more than mine, so you change this material—as you have done so ably and so often throughout this edition—however you want, and I will cheer you on.

This book does not speak primarily to scholars of law and politics or to any other specialized subset of readers. It frames for everyone ideas that go to the heart of civic engagement and competence. By describing the basics of the legal process, and by augmenting and critiquing some of the classics of legal reasoning, we hope to articulate some ideas that scholars and practitioners find both theoretically fresh and practically useful. Indeed, the scholars and sitting judges who have read this book in some of its eight earlier editions have told us that it is stimulating and helpful. But our main aim is to make sense of a reality that we, laypeople and professionals alike, face throughout our lives: those who rule us, from parents to political rulers to umpires, referees and judges of all kinds, may act arbitrarily and hurtfully and corruptly when they operate outside the rule of law.

The rule of law, one of the great advances of human civilization, enables a degree of trust among strangers without which the complex relationships of modern life fall apart. The rule of law is today’s version of the center that must hold in W. B. Yeats’s great poem The Second Coming, describing the chaos in Europe after World War I, when the center fell apart and the falcon could no longer hear the falconer. Legal reasoning, the performance art by which judges compose persuasive justifications for decisions they make, helps significantly to maintain social trust and thus to hold community together. And in case we are getting a bit too abstract and airy-fairy here, the great Stephen Colbert can bring us back to Earth. On his program of October 7, 2014, Colbert spoke with Leon Wieseltier, the former literary editor of the New Republic. Their banter included the following:

Wieseltier: I believe in educated guts. The important thing is to have reasons for our beliefs and that we articulate those reasons and that we can defend them.

Colbert: . . . Here’s a reason for my beliefs. They feel good. It feels good to think that when I die I will go to heaven. That feels good, and it feels good to think that I am right. . . . It’s truthy. It’s unassailable because my truth is based upon what I want to be true rather than anything the facts could possibly support. Your truth requires work. My truth simply requires merely feeling. . . .

Wieseltier: . . . I congratulate you for living entirely in a world of your own.

This is our point in a nutshell. People who take the easy way out, who let their feelings do their thinking for them, people who do not base their actions on the facts about, and the experiences of, the world that we can share and debate, ultimately live alone. When they seek to rule, they can do so only through the force of their office, not consensus. This is the reality we see in the parts of the world now ruled by religious and ideological fundamentalists. It is the world Thomas Hobbes famously described in his 1651 work Leviathan:

In such condition there is no place for industry, because the fruit thereof is uncertain, and consequently, no culture of the earth, no navigation, nor the use of commodities that may be imported by sea, no commodious building, no instruments of moving and removing such things as require much force, no knowledge of the face of the earth, no account of time, no arts, no letters, no society, and which is worst of all, continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short.

Alas, as Winston Churchill shrewdly observed, men in power do not routinely reason their way to their decisions and justify them. Much of the time they feel their way to decisions that bring only waste, loss, and death. We take President George W. Bush’s 2003 invasion and subsequent occupation of Iraq as a prime example of this all-too-familiar pattern in human affairs. In the chapters that follow we describe a framework for thinking about the world that helps avoid such follies. This edition incorporates recent works by psychologists, particularly Jonathan Haidt and Daniel Kahneman, who flesh out David Hume’s classic observation in A Treatise of Human Nature: Reason is, and ought only to be, the slave of the passions. Inspired by these thinkers, we explore in this edition more fully just what human reason is and isn’t, and explain how a passion for the craft of judging well can generate justice. In short, this book argues that reason in law, which is really a model of good reasoning about anything in our personal and civic lives, matters—a lot.

Chapter 1

What Legal Reasoning Is and Why It Matters

I have grown to see that the [legal] process in its highest reaches is not discovery, but creation.

—Benjamin N. Cardozo

They ain’t nuthin’ until I calls ’em.

—Umpire Bill Klem (attributed)

An Overview of Law and Politics

In late June 2013, millions of Americans eagerly awaited the Supreme Court’s decision about whether the U.S. Constitution recognized the marriage of Edith Windsor to Thea Spyer, a same-sex couple who had been partners for forty-two years. Edith and Thea had been married in Canada in 2007, and their marriage was considered legal in the state of New York, where they lived. But under a U.S. federal law, the Defense of Marriage Act, the federal government refused to treat Edith and Thea as legally married. This had powerful consequences: when Thea died in 2009, she left behind a large estate, and because Edith was not recognized as Thea’s spouse, she had to pay more than $300,000 in inheritance taxes. This was just one of the hundreds of ways in which the Defense of Marriage Act disadvantaged same-sex couples, even those like Thea and Edith who were recognized as legally married by the state in which they resided. Edith’s lawyer, however, argued that she shouldn’t have to pay the tax because the Defense of Marriage Act was unconstitutional. The lawyer argued that the law violated the Fifth Amendment of the U.S. Constitution, which guarantees fundamental liberties, including, the lawyer argued, the right to marry whomever one chooses. If the justices of the Supreme Court agreed with Edith, it would affect not just her massive tax bill but also the rights of men and women across the nation. Of course, for religious conservatives fighting for the traditional marriage, the decision was equally consequential. Whatever the Court ruled, it would deeply disappoint many Americans.

A little more than a decade earlier, in 2001, a British court considered a more obscure but also very divisive matter: what to do about conjoined twin girls, Jodie and Mary. The two were joined at the pelvis, though each had her own organs and limbs. Doctors believed that both girls would eventually die if they were not separated. Separating them, however, would kill Mary, the weaker twin. The twins’ parents, devout Roman Catholics, believed that it was not God’s will that one child die to enable the other to live because [e]veryone has the right to life.¹ The hospital in which the twins were treated, however, believed that failing to separate the twins would violate Jodie’s right to life. Despite the parents’ wishes, the hospital sought legal authorization to perform the separation, arguing that the operation would count under British law as saving Jodie’s life, not as murdering Mary. The judges in the case faced an awful dilemma. If they sided with the hospital, they would be overriding the rights of the parents and the arguments of religious leaders, who argued that the hospital was trying to seek authorization for the murder of Mary. If they sided with the parents, though, they might be putting Jodie’s life in jeopardy.

More than twenty years before the case of the conjoined twins, and back in the United States, a case of murder raised another complex legal issue. On August 9, 1977, a patron of a bar, Happy Jack’s Saloon, saw a confrontation in which Darrell Soldano was being threatened. The patron, hoping the police could quell the fight, ran to the nearby Circle Inn, told the bartender about the threat, and asked that the bartender call 911. The bartender refused, even refusing to let the patron make the call himself. Back at Happy Jack’s, the confrontation escalated and Darrell Soldano was shot dead. A lawsuit sought damages on behalf of Soldano’s young son, not from the shooter but from the Circle Inn, blaming the bartender who had refused to call 911. The lawsuit contended that if the call had been made, the police could have stopped the fight and Soldano would not have been shot. The restaurant, however, argued that its bartender had no duty under the law to call 911. As in the other cases, the judges in this lawsuit had to declare one side a winner and the other a loser: the son left without a father, or the Circle Inn restaurant, which considered itself blameless for Soldano’s death.

Every year courts decide millions of such disputes. Most, like the Happy Jack’s case, don’t receive much media attention; a few, like the same sex-marriage case, become worldwide news. But however famous or obscure, for the participants—the son of a murdered father, a restaurant owner worried about a huge liability bill, parents of children in a medical crisis, gay men and lesbian women hoping to be married—such lawsuits are of enormous consequence. These people’s futures, sometimes even their lives, lie in the hands of judges. How should the judges decide their fates?

Laypeople unfamiliar with the legal process tend to assume that some simple legal rule—a statute or a constitutional clause or a judicial precedent—can settle the matter. But digging beneath the surface of these three cases, the rules turn out to be ambiguous. The Fifth Amendment to the Constitution, one of the rules in the same-sex marriage case, merely states: No person shall . . . be deprived of life, liberty, or property, without due process of law. What does this have to do with same-sex marriage? There were a couple of previously decided cases interpreting this phrase to prohibit the government from discriminating against minority groups, but how far did that principle extend? In the case of the conjoined twins the rules were equally murky. Some of the judges cited Airedale v. Bland,² a case in which a hospital was authorized to stop life-sustaining support measures for a young man, Tony Bland, who was in a persistent vegetative state. But was Mary, the weaker twin, really in the same position as Bland? And wasn’t a surgical separation a more violent mode of causing death than simply withholding treatment? In the case of Happy Jack’s the previously decided cases were also no sure guide. There were cases in which courts had held individuals culpable for refusing to help others, like the Circle Inn’s bartender who refused to make a 911 phone call. In all the previous cases, however, there was some kind of special relationship between the victim and the defendant. Was there really a special relationship between the Circle Inn’s bartender and a stranger asking for help? Or was the existence of a special relationship in the previous cases really so important? In each case the rules were ambiguous, and judges could easily interpret them to the benefit of either side. Indeed, this is one of the reasons all three of these cases were so sharply contested—the law was unclear, so the parties needed the judges to resolve their dispute.

If rules by themselves couldn’t resolve these lawsuits, perhaps the judges could consider instead the moral values at stake in each dispute. From this perspective courts should serve as a kind of moral forum in which judges articulate society’s most deeply held values and interpret the rules so as to advance those values. But in each of the cases there were several such values, and the competing values pushed the judges in different directions. Gay men and lesbian women claimed the values of freedom and equality, but cultural conservatives pointed to the value of the traditional family and hundreds of years of moral and legal prohibitions on homosexual conduct. Jodie and Mary’s parents invoked their rights to make decisions for their children without interference from others, and they argued for the sanctity of the life of Mary; the hospital cited the right to life of Jodie. The lawsuit against the unhelpful bartender rested on a duty to help one’s fellow human being; the restaurant owner could equally cite the value of freedom to do as one chooses, including the freedom not to help. How should judges choose among these competing, deeply held principles?

Making things even more difficult for the judges were the factual disputes in the cases. How could the doctors know for sure that Jodie and Mary couldn’t survive together, or that Jodie would live if separated? How could anyone know if calling 911 would have prevented the escalation of the fight that killed Darrell Soldano? And there were also broader factual questions that went beyond the particularities of each case. When parents and doctors disagree about complicated medical treatments for children, are parents sophisticated enough about the science involved to make informed choices? Would expanding the duty to help others really make society more safe—or would it simply lead to more lawsuits against blameless bystanders wherever trouble erupted? Would the recognition of same-sex marriage really affect the well-being and robustness of the traditional family, as cultural conservatives claimed? What evidence should judges rely on in assessing this question?

This book describes how judges, despite the ambiguities and dilemmas that lurk in every corner of life and law, can use good legal reasoning to resolve difficult disputes. Laypeople, the people for whom we have written this book, may think that legal reasoning is so complex and technical that only those with professional training can possibly understand it. We believe, however, that laypeople with no such background are fully able to become sophisticated evaluators of legal opinions—judges of judging—and in the process, smarter and more engaged citizens. Indeed, we believe good citizenship requires some understanding of how legal reasoning works, because law, far from a dusty, dry, technical topic, is fundamental to politics. Legal reasoning serves simultaneously as the velvet glove covering the fist of governmental power and as the sincerest expression of a community’s ideals of justice. To understand legal reasoning is to understand the rule of law itself.

Chapter 6 and appendix B explore more fully the relationship between law and politics, but we begin with three observations about the many ways in which they are intertwined.

The Law Is All around Us

When President Obama in a May 2013 speech defended his policy of using drones to kill people his administration had determined to be enemies of the United States, critics argued strenuously that the policy violated international law.³ Because no world court had the power to resolve the matter and enforce its judgment, that legal issue remained just another political shouting match. Law becomes the rule of law only when courts have the power to resolve legal claims or when people, knowing that powerful courts can step in to settle matters for them, bargain in the shadow of the law.⁴

The political system of the United States, unlike the international system, incorporates a powerful and independent judiciary. Our nation thereby claims to honor the rule of law. Alexis de Tocqueville wrote long ago that there is hardly a political question in the United States that does not sooner or later turn into a judicial one.⁵ The daily flow of news reports regularly reaffirms Tocqueville’s observation:

• Civil rights groups and the Obama administration in 2014 challenged a Texas law that required voters to have a government-issued photo identification in order to cast a ballot. The group argued that because many minority voters lack such identification, the law would disproportionately block them from voting. A federal district court judge agreed with the challenge, concluding that Republican governor Rick Perry and the Republican legislature enacted the law to suppress the overwhelmingly Democratic votes of African-Americans and Latinos, thus bolstering their party’s political prospects.⁶ The judge ruled that the law violated both the Voting Rights Act and the Twenty-Fourth Amendment to the Constitution, which bars a poll tax, a fee assessed for the privilege of voting; the judge concluded that the fees associated with the photo identification cards required by the law amounted to a poll tax. A federal appeals court, however, allowed Texas to proceed with the photo identification requirement for the 2014 election, and the U.S. Supreme Court refused to hear an appeal of that decision.⁷

• In 2012 the struggle over President Obama’s major health-care reform law, the Patient Protection and Affordable Care Act (Obamacare), reached the Supreme Court, where Obamacare opponents argued that the law’s requirement that individuals buy health insurance went beyond the powers granted to Congress by the Constitution. On June 28, 2012, the Court by a 5–4 vote upheld the constitutionality of Obamacare, ruling that the penalty assessed against those who would fail to buy health insurance could be considered a tax, and thus within Congress’s taxing powers.⁸

• The South Carolina Supreme Court on November 12, 2014, declared that the state was not providing a minimally adequate education to all students as required by the state’s constitution. The Court noted that in most of the school districts covered by the lawsuit, test scores revealed that more than half of students were failing to perform at even a minimum level for their grade. The Court by a 3–2 vote directed the state to address the problem. Dissenting