October 1, 2010 – Justice Young: “You’re done!”

This column picks up where yesterday’s leaves off: with Michigan Supreme Court Justice Robert P. Young, Jr., at a Q&A session of the Muskegon Tea Party meeting, September 28, 2010.

Others asked questions about ways he’s suggest to vet lawyers with ACLU leanings, his stand on gun laws, and his thoughts on the U.S. Supreme Court.  Justice Young answered with care, and, for the most part, to the approbation of his audience.

Then, I was accorded the opportunity to query the Justice one more time.

DBS: “You’ve gathered that I’m somewhat critical of your practice.”

RPY: “Well, I figured as much.  You’re sitting next to my severest critic.”

Oh, did I mention that I was seated next to newly retired Justice Elizabeth Weaver?  She was just sitting, observing, taking notes.  At no time did she say anything to Justice Young or the group at large.  But that didn’t hold Justice Young back from repeated castigations of her work.  And at no point in the evening did anyone in the audience or at the leadership table think to ask her if all he was saying was true.

But back to my one more question.  Justice Young had been speaking at length about the sanctity of the law, how its foundations are being eroded.  I just could not square all that with something he’d written in 2004 concerning our tradition of common law.  Now, that law is what’s been handed down to us.  Most often we cite the English Common Law as the beginnings of our own.  And always, it’s based on precedence…what’s gone before.  Oliver Wendell Holmes, Jr., (later Justice) in his The Common Law (1881) put it this way:

The life of the law has not been logic: it has been experience.  The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rule by which men should be governed.  The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. (1)

This is common law, and the law of other wrongs including fraud, acts of malice, contracts, successions…pretty much of what our courts deal with on a day-to-day basis.

At any rate, Justice Young in an article published in the Texas Review of Law and Politics (Tex. Rev. Law & Pol. 299, Spring, 2004. 299-) had much to say about our common law.  I want to make sure I haven’t taken things out of context, so please read it for yourself, here. Here’s how he sets up his argument:

I am therefore simply  going to take as my starting point the proposition that the established common-law tradition, with any number of dodges and sleights of hand, allows judges to “discover” or make common-law rules that address evolving social concerns. (301)

He goes on to characterize the common law this way:

…I tend to think of the common law as a drunken, toothless ancient relative, sprawled prominently and in a state of nature on a settee in the middle of one’s genteel garden party. Grandpa’s presence is undoubtedly a cause of mortification to the host. But since only the most ill-bred of guests would be coarse enough to comment on Grandpa’s presence and condition, all concerned simply try ignore him.

Like the attendees at my imaginary garden party, common-law apologists have spent centuries denying that Grandpa was actually in attendance or, if so acknowledged, vigorously asserting that he was actually clothed and sober. Indeed, some jurists like Justice Cardozo actually celebrate Grandpa and his condition and enthusiastically urge all of us to relax, undress, and join Grandpa in his inebriated communion with nature.

As is the case with young children unschooled in social niceties, legal realists have been pointing and making a regular fuss about the fact that there is a frightening, drunken old man laying about with no clothes on. And like that child, I too acknowledge that this modern conception of the common law that authorizes jurists to discover, create, or modify common-law rules – or policy – is entirely inconsistent with normative constitutional policies and principles, according to which prerogatives of policymaking are given to other branches of government.  (302) (I have deleted the footnotes from the above but you can read them at the linked article.)

I’m not even sure that I entirely disagree with Justice Young.  We’ve seen that the law can be used as a sword instead of a shield.  I think he’s used it as such.  What strikes me, though, is the way this is said, the rhetoric.  It brings to mind a thought: who among us that professes filial piety–the respect for our parents, grandparents, ancestors–would leave our drunken Grandpa sprawled naked?  Would we not try to clothe him in a blanket and cover his nakedness?  Would we not do everything in our power to restore him to wholeness, even if it means waiting while he sobers?  If we had any respect for him and all he represents would we not keep him from censure and mockery?

This also brings to mind the Genesis story of Noah and his drunkenness (9:18-27).  I think Justice Young might profit from being reminded of what happened in the case of the son mocking his drunken father: Ham called down slavery upon his son Canaan and all his descendants.

So, does the rhetoric really matter all that much?  I THINK so, but I wanted to clarify it with the author of the screed.

DBS:  You have talked about the importance of the tradition of law, yet didn’t you write a passage about the common law?  Something characterizing it as a drunken grandfather lying sprawled naked…?

RPY: “‘…in the middle of one’s genteel garden party.'”

He actually picked up the quote and finished the phrase.  He knows these words.

And he explained there have been many cases where he has found the common law worth upholding.  It was a lengthy answer.  But what I was driving at and what I  really wanted to know was the motivation for such disdain for this unwieldy common law.  It’s problematic to be sure, but drunken naked?  Well.

So I raised my hand again and the Justice turned toward me and said something.  Because of a slight defect in my hearing I thought he said “Your turn.”  “Wow!,” I thought, “maybe he will enter into a discussion about this.”

I started to respond was stopped.  Arm extended and finger pointed at me, he thundered:  “You’re DONE!”

DBS: I am?

He nodded and asked for other questions.  Well, I suppose he’s correct that we could have stayed at it for a little while, and he had to leave to get to another event.  So, while I continued to raise my hand, I wasn’t picked.

Today, I again went over his 2004 article.  I find his writing lucid, persuasive, grandiloquent.  There is no doubt at all that he has a tremendous intellect and many gifts.  But, I pause when he writes:

Indeed, it is hard for me, a jurist of the 21st Century, to consider that the common law is “law” in any conventional sense. (303)

In what sense could common law be law of any sort other than by convention?

At any rate, his talk ended, he was thanked mightily, and he exited to a standing ovation.

Note to Harvard:  Even though Justice Young attended there  as both an outstanding undergraduate and a law student, you might want to hold off on funding appeals; I don’t think you’re going to get anything.  Of you he said: “I am a recovering Harvard Law student.  That’s ground zero Sodom and Gomorrah.”  I sure hope he wasn’t there on a scholarship; “How sharper than a serpent’s tooth….”

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Copyright©2010 David B. Schock.