Osler's Razor

Appeal as Pilgrimage, Court as Temple

By Mark Osler

Presented at the 2013 William and Mary Annual Symposium for

Pilgrimage Studies

Introduction

                  On a bright morning in 2008, I sat quietly in a temple.  It was far from home, but remarkable:  the outside is constructed with stout blocks of Vermont marble, the inside surfaces of Spanish marble with delicate ivory veins.  We sat quietly in rows, having come from every destination, peering around at our intimidating surroundings.  Looking back at us from the South wall, compellingly, is Moses bearing the Ten Commandments.  Like the others there from New York and Florida and California and Iowa, I am wearing dark clothing, the drab uniform of conformity.  I was anonymous there, all the more because each aspect of the temple was intentionally constructed to leave me humbled. 

         In the Temple of Justice (which is what the Supreme Court Building is really called on the Supreme Court web site),[1] the Justices sit high above and before us, wearing robes of authority.   A guard stands watch in our midst, vigilantly watching for the slightest wrong move.  We are humble guests before that which Americans worship.  We are pilgrims of the Constitution.

         There can be little doubt that the Constitution has to some degree replaced the Bible as a source of public values in America.  2010 U.S. Senate Candidate Christine O’Donnell was in step with many Americans when she described the Constitution as a “covenant” based on “divine principles.”[2]  This tendency is neither new nor limited to the political fringe; Woodrow Wilson criticized what he saw as an “undiscriminating and almost blind worship of its principles....”[3]

         Of course, there is much to love about the Constitution as a source of principles.  They are, after all, good principles:  That freedom should be respected, that concentrated power is dangerous, that individuals have inherent rights such as freedom of speech and religion, and even (through the pardon power) that mercy must have a role in human societies.  Those who conflate these principles with Christianity are mistaken,[4] but those Constitutional principles stand alone as a strong and coherent belief system, at least in relation to governments and citizens.  

         If we view the Constitution as a text bearing higher truths, and the Supreme Court as a temple of those truths, the long trek of an appellate lawyer can fairly be called a pilgrimage.  Though the experience is shared by few, it embodies both the key premises and the defining experiences of pilgrimage.

Defining Appellate Advocacy as Pilgrimage

         In looking to define a pilgrimage before holding appellate advocacy up to that template, I lean heavily on the work of George Greenia,[5] who has been my friend and guide as I tiptoe into the field of pilgrimage studies.  It is his lead that I follow in first looking to the work of Linda Davidson and David Gitlitz in defining the premises of pilgrimage.[6]

         Davidson and Gitlitz describe three fundamental premises of a pilgrimage.  The first is a “conviction that there are forces larger than ourselves—gods, superheroes, the tectonic plates of history—forces with the ability to influence our lives.”  The second is “an ability to potentially initiate a meaningful relationship with those forces,” and the third is that there are particular places where the power of those forces reside.

         Each of these premises neatly fit the experience of appellate advocacy. 

         As to the first premise, the enterprise itself reveals the belief in practitioners that there are greater forces at work:  After all, the advocate is going to that greater force, the force of law, and asking for a specific outcome.  I love the phrase “the tectonic plates of history,” because that precisely describes what we lawyers hope to influence as we argue for desegregation, or the freedom of corporations to express themselves through unlimited political spending, or by pressing for a societal recognition of same-sex marriage.  In our secret dreams, we are the ones who convince the gods of the law to move those tectonic plates.

         That dream both leads to and fulfills the second premise, that the pilgrim believes that she can “potentially initiate a meaningful relationship with those forces.” That describes exactly the goal of the appellate advocate, who seeks to harness the law, the Constitution, or both, through the power of the court.  We seek a relationship with the law that is ongoing, since it is rare that a single case will resolve an issue in one fell swoop.  More typical is what we call a “line” of cases, each influenced by its predecessor and the pilgrims who pressed it forward.

         Finally, the third premise asserts that a true pilgrimage involves travel to a particular place where those powerful forces reside.  A simple image resolves this question:  The Temple of Justice, with its gleaming white pillars and marble stairs.  We must travel to it to press our case, to seek that meaningful relationship with the law, and if we do not we forfeit the chance for that engagement.  The country lawyer from a dusty town in Texas travels to the Fifth Circuit courthouse in New Orleans; the attorney from Vermont drives his pickup down to the canyons of New York to argue in the Second Circuit, and we come from everywhere to ascend those marble steps in Washington DC in the fittingly (and oddly spiritually) named “Supreme” Court. 

         Extending these three basic premises, Greenia has posited seven complementary aspects describing the experience of being a pilgrim:

1)  A belief in the transcendent

2)  A connection to memory

3)  An ability to resist time itself

4)  Elision of self

5)  The invitation to a high-value performance

6)  A body-centered enterprise

7)  Incompleteness

I will address each in turn.

         First, drawing from the first premise above, Greenia looks for a motivating belief in the transcendent—a belief that at least implies that there is something greater than the pilgrim and the community she is from.  Law in our nation is constructed in precisely this way.  The municipal ordinance, however beloved, must give way to the Constitution if they conflict.  A community belief in, say, racial segregation, is transcended quite literally by the power of the Constitution and the Court.  Importantly, this is not a physical power, for the Court has no troops, has no coercive arm.  The transcending of local norms and individual actions is by power of moral compulsion alone.

         Second, Greenia suggests that pilgrimage has something to do with memory.  As he puts it, “Pilgrim paths lead deep into ancient times when the collective enjoyed clear consensus.”  Such is our belief in the Constitution, and our discussions of the framers of the republic and their work as a unique “Constitutional Moment” of particular inspiration.[7]  Mythology and reverence hang like mist around the (relatively) ancient time when that collective of men forged a document which did, in fact, find consensus among the states.

         Third, Greenia suggests that pilgrimage somehow involves the ability to resist time itself.  Pilgrims become a part of sacred memory going forward.  Just as we see ancient roots in what we do, appellate advocates seek directly to create memory going forward—they want to create precedent.  As the Constitution and the law evolve to encompass new realities, the appellate lawyer wants to create something timeless within that developing realm, a rule for the future. 

         Fourth, pilgrimage experiences require a certain elision of self, or what Greenia calls a surrender of individualism.  This is true for the appellate lawyer at two levels.  First, she has traveled to the courthouse not on her own behalf, but representing someone else.  There is something profound in that, the bare fact that this pilgrimage is almost always in the name of another.  Brown v. Board of Education bears the name of Oliver L. Brown, a welder and father of a third-grader, not the name of the man who argued that case so well before the Supreme Court of the United States (Thurgood Marshall).  Second, it is often true that the pilgrim does not want to just win that case, but to establish a precedent that will govern other cases.  In other words, the pilgrimage seeks to transform not only the pilgrim, and not even just the pilgrim and the person she represents, but the body of law itself. 

         Fifth, Greenia suggests that “pilgrimage invites a high-value performance on the part of the traveler.”  There are few pilgrimages for which this is more true than for the appellate lawyer, who is called on to stand before the judges and perform.  It isn’t optional; the performance is the reason for the journey. 

         Perhaps least relevant, at least at a superficial level, is Greenia’s sixth aspect of the pilgrimage experience, that it be at some level a body-centered enterprise.  Upon closer examination, however, the courtroom experience is a veritable Kabuki theater of ritualized movement.  All rise when the judges or justices arrive, and again when they depart.  When arguing, the advocate must stand within one arms-length of the podium or risk censure by the court.  If called upon while at the counsel table, the lawyer must rise for that, as well, and remain standing so long as she is conversing with the court.  Moreover, each of these movements have meaning; they are part of the dance of deference to the court that must be performed again and again for the artificially constructed hierarchy of authority to be maintained.

         Finally, we come to Greenia’s seventh element of the pilgrimage experience:  Incompleteness.  No pilgrim completes a pilgrimage with a sense they have exhausted the experience, that the story is finished.  So it is, powerfully, with the appellate experience.  Most obviously, the judges almost never declare an outcome—the pilgrims go home not knowing the success or failure of their quest.  Even with that aside, there is a deep incompleteness to even the most consequential appellate case.  Advocates are inevitably left to sort through innumerable loose ends—enforceability, retroactivity, scope of the precedent—and the road is never quite at an end.

Thurgood Marshall, Legal Pilgrim

         One delight of the legal pilgrimage, like many others, is to remember the people who have traveled the same road before.  Pilgrimage is not necessarily about the present; it is at times more of a pregnant space between the weight of the past and the creation of the future.

         The past, in American courts, holds the legacy of one of our greatest litigators, Thurgood Marshall.  Before becoming a Justice of the U.S. Supreme Court, Marshall was an appellate advocate both in the Supreme Court and in courts across the south.  His pilgrimage was significantly different, though, because of the realities of race in that time.  A moment probably came, in some southern courthouse, where Marshall walked out after an argument, tired and parched.  He could not, though, use the first water fountain he came to, because it was marked “whites.”

         Marshall’s preparation for an argument became ritual.  He prepared tabbed notebooks containing the cases he might need, to be kept readily at hand.  He obsessed over briefs, willing them to perfection.  For a week before an argument, he would drink one, and only one, glass of wine with his dinner.[8]  Then he took the train to Washington, where he won 29 of 32 cases in the United States Supreme Court.  While there, he and his assistants were often forced by segregation to stay in “negro” hotels, which Constance Baker Motley described as “no more than a rooming house in a ‘Negro’ residential area.”[9]

         The success of Thurgood Marshall was driven by his belief in the Constitution as singularly important document.  He famously memorized the entire thing at age 16, and one of his assistants at the NAACP reflected that Marshall had been taught at Howard Law School that the Constitution was “a powerful force, heretofore virtually untapped, that should be used for social engineering in race relations.”[10] 

         When a lawyer comes to Washington today from some far-off place, she is well aware of those who came before.  Within that history lies the thrill of re-creating it endlessly—that the experience of Thurgood Marshall in re-making the law is, in some small way, the same as each of those who come to create the legal future.

From the Steps

         I wasn’t alone that morning at the Temple of Justice in 2008.  I had brought two of my students from Waco with me: Matt Acosta and Dustin Benham. We had written a brief in an important sentencing case, Kimbrough v. United States,[11] which challenged strict sentencing guidelines in crack cocaine cases.  I was not arguing the case; instead we got to sit with the reverent crowd and watch the Justices at work. 

         While preparing our briefs, Matt Acosta and Dustin Benham had raised an intriguing point:  If Congress wanted that sentencing guideline to be the law rather than just an advisory guideline, they should have put it into a statute rather than hoping it would be inferred.  Congress could have acted, was even invited to act, in the way the government wanted, but had not.  We put it into our briefs, and it was incorporated into others that were submitted.

         At the end of the argument that day, Chief Justice Roberts, a swing vote, directly challenged the Deputy Solicitor General, Michael Dreeben.  Roberts’s point was that if Congress had wanted to make the guideline the law, they could have acted, and they hadn’t.  It appeared that the Chief Justice had seen our argument, and agreed. 

         Leaving the court, we went out with others involved in the case at the top of the broad stairs.  There was a buzz; it appeared the government would lose, and we would win a measure of mercy in crack cases, given that Roberts was sympathetic.  The buzz was right, and two years later Benham and I would win a follow-up case holding that sentencing judges could “categorically reject” the strict crack guidelines.

         There is a graceful moment after an argument where you step out of the cool dark of the courthouse into the late-morning sun of Washington, DC.  Far below you at the bottom of those famous white steps are the crowds and the news trucks and the bustle of the streets.  Looking straight ahead, you can see directly over the United States Capitol to the green spaces of the Mall, to the Lincoln Memorial and its matching set of white steps where Martin Luther King, Jr. spoke about the dream for his children. 

         I stopped my two students at the top of those steps, and we took in the view and all that had happened in silence.  We had seen the tectonic plates of history move.  “This,” I told them, “is as good as it gets.”

         Was it a pilgrimage?  If not, then what is?