Affirmative Refraction: Grutter V. Bollinger through the Lens of the Case of the Speluncean Explorers

Caron, Paul L., Gely, Rafael, Constitutional Commentary

What can a fifty year-old hypothetical about human cannibalism concocted by the late Lon Fuller (1) teach us about the Supreme Court's recent foray into the affirmative action debate in twenty-first century America? (2) Indeed, what can a tax law professor and a labor law professor add to the cacophony of voices of leading constitutional law scholars on the Court's most important pronouncement on race in a generation? (3) We make a rather modest claim, based on teaching both of these cases in our one-week Introduction to Law classes for incoming first year students, (4) that a helpful way to view Grutter v. Bollinger (5) is through the lens of The Case of the Speluncean Explorers. (6) Legal scholars have issued dozens of new "opinions" on the hypothetical legal issue in that case to take into account contemporary legal theories developed in the past fifty-five years. (7) This Article is the first to take the opposite approach (8) and view a real-life legal issue through the eyes of the fictional Justices in The Case of the Speluncean Explorers. This Article also is the first to consider the applicability of Fuller's hypothetical outside the context of statutory construction.

We argue that the various opinions in Grutter find their intellectual forebears in the opinions in The Case of the Speluncean Explorers. For all the heat generated by Grutter, the opinions merely mark another way station in the centuries-old debate among competing philosophies of the role of law and government. By examining the Grutter opinions in the context of this rich jurisprudential tradition, we hope to elevate much of the current debate about the case, in which labels like "liberal" and "conservative" are hurled about like epithets, toward a more sophisticated understanding of how the various Justices' approaches embody alternative views of the proper judicial function in our democracy.

Parts I and II of this Article describe the facts and opinions in The Case of the Speluncean Explorers and Grutter. Part III then draws some rather surprising connections between these very different cases by using what we call a "jurisprudence of humility." We explain how the disparate opinions in Grutter can be understood in the context of the issues addressed by the mythical justices in The Case of the Speluncean Explorers over half a century ago. Although a jurisprudence of humility does not make it any easier to decide difficult issues like the constitutionality of racial classifications in university admissions or the applicability of a murder statute to stranded cave explorers who kill and eat a colleague, this framework illuminates how different theories of the proper role of courts affect the decisions made by judges. A better appreciation of these theories, in turn, will help inform lawyers who practice before those judges and law professors who write about them.

I. THE CASE OF THE SPELUNCEAN EXPLORERS

In the faraway year of 4299 in the mythical jurisdiction of Newgarth, (9) five members of an amateur society of cave-explorers (the Speluncean Society) are trapped after a landslide covers the opening of a cave they are exploring. (10) A frantic rescue effort is launched, (11) but the explorers' provisions will be depleted before the rescuers can reach them. On the twentieth day of the ordeal, rescuers make radio contact and tell the explorers that it will take at least ten days to free them. Medical experts inform the explorers that there is "little possibility" they will survive the ten days without food. When asked by Richard Whetmore, one of the explorers, the experts report that four of them could survive if they kill and eat the flesh of the fifth member of the group. When Whetmore asks whether they should draw lots to pick the explorer to be killed and eaten, the medical experts refuse to answer, and Whetmore's requests for guidance from judges, government officials, and clergy go unheeded. Three days later, Whetmore is killed and eaten by the other four explorers after they draw lots by throwing dice. (12)

After the four survivors are rescued nine days later, they are indicted and tried for murder under a statute providing in its entirety: "Whoever shall willfully take the life of another shall be punishable by death." (13) The jury issues a special verdict finding the facts as outlined above, and the trial judge finds the defendants guilty under the statute and imposes a mandatory death sentence. (14) The jury and trial judge join in requesting the Chief Executive of Newgarth to commute the defendants' sentences to six months' imprisonment. (15) Defendants appeal to the five-member Supreme Court of Newgarth while the clemency request is pending.

A. JUSTICES VOTING TO AFFIRM THE CONVICTIONS

1. Chief Justice Truepenny

Chief Justice Truepenny votes to uphold the verdict because the statute "permits of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves." (16) But the Chief Justice also urges the Court to join in the clemency petition to the Chief Executive. (17) In this way, "justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law." (18)

2. Justice Keen

Justice Keen provides the second vote to affirm the convictions. At the outset of his opinion, Justice Keen quickly disposes of two issues that he says are not the province of the Court: (1) executive clemency (19) and (2) morality--"whether what these men did was 'right' or 'wrong.'" Instead, the sole issue is one of statutory construction, and Justice Keen concludes that "any candid observer, content to extract from these words their natural meaning, would concede at once that these defendants did 'willfully take the life' of Roger Whetmore." (20) Justice Keen chastises his colleagues for their "failure to distinguish the legal from the moral aspects of this case." (21) He "bluntly" accuses his fellow Justices of subordinating "the law of the land" to their own "conceptions of morality."

Justice Keen recounts the civil war fought in Newgarth centuries earlier as a result of "an unseemly struggle for power" between the judicial branch and the legislative and executive branches, which established the supremacy of the legislature. (23) He, like Justice Tatting, sharply criticizes Justice Foster for disregarding the clear language of the statute in order to further its purported purpose of deterrence. According to Justice Keen, the statute at issue here, like most if not all statutes, has multiple purposes. It is thus, a canard to argue that courts may fill in the gap in the statute or make corrections in the legislative design. Instead, the Court's role is to interpret the statute "in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice." (24)

Justice Keen also takes issue with Justice Foster and Justice Tatting's reliance on an exception to the murder statute, created by an earlier decision of the Court on the theory that a defendant who acts in self-defense does not act "willfully." Justice Keen contends that the exception is not relevant here because it applies only when the defendant resists a threat to his own life, and "Whetmore made no threat against the lives of these defendants." (25) Justice Keen concludes that his approach provides the best result in this case and leads to the sounder administration of justice in the long run. "[W]e would have inherited a better legal system from our forefathers if [these] principles had been observed from the beginning. For example, with respect to the excuse of self-defense, if our courts had stood steadfast on the language of the statute the result would undoubtedly have been a legislative revision of it." (26)

B. JUSTICES VOTING TO REVERSE THE CONVICTIONS

1. Justice Foster

Justice Foster first criticizes Chief Justice Truepenny's exhortation to seek clemency as "an expedient at once so sordid and so obvious":

   I believe something more is on trial in this case than the fate
   of these unfortunate explorers; that is the law of our Commonwealth.
   If this Court declares that under our law these
   men have committed a crime, then our law is itself convicted
   in the tribunal of common sense.... For us to assert that the
   law we uphold and expound compels us to a conclusion we
   are ashamed of, and from which we can only escape by appealing
   to a dispensation resting within the personal whim of
   the Executive, seems to me to amount to an admission that
   the law of this Commonwealth no longer pretends to incorporate
   justice. (27)

Justice Foster then offers two independent justifications in support of his view that the law does not compel "the monstrous conclusion that these men are murderers." (28) First, the statute and related case law do not apply because the explorers' horrendous circumstances placed them in a "state of nature," and the explorers thus were subject only to natural law. Under the natural law precept of freedom of contract, the explorers' compact was justifiable to enable the four to survive at the cost of the one. (29) Second, the statute must be interpreted in light of its purpose of deterring murder, and this purpose is not served in convicting the defendants because they were justified in taking Whetmore's life to ensure their own survival. (30)

Although Justice Foster professes fealty to the principle that the Court is bound by statutes and is thus subservient to the duly expressed will of the legislature, he distinguishes "intelligent" from "unintelligent" obedience. (31) Justice Foster emphasizes that "[n]o superior wants a servant who lacks the capacity to read between the lines." (32) Justice Foster offers two examples: "The stupidest housemaid knows that when she is told 'to peel the soup and skim the potatoes' her mistress does not mean what she says. She also knows that when her master tells her to 'drop everything and come running' he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence from the judiciary." (33) He thus concludes that the "correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective." (34)

2. Justice Handy

Justice Handy takes a pragmatic, common-sense approach in providing the second vote to reverse the convictions. Justice Handy notes that he has become "more and more perplexed at men's refusal to apply their common sense to problems of law and government." (35) The question on appeal, he writes, is one of "practical wisdom, to be exercised in a context, not of abstract theory, but of realities." (36) He chides his colleagues for throwing "an obscuring curtain of legalisms" at what is at bottom a simple case. For example, he criticizes the "learned disquisitions on the distinction between positive law and the law of nature, the language of the statute and the purpose of the statute, judicial functions and executive functions, judicial legislation and legislative legislation." (37) Justice Handy reminds his colleagues of the danger of getting "lost in the patterns of our thought and forget that these patterns often cast not the slightest shadow on the outside world." (38) In Justice Handy's view, courts derive their legitimacy by bending to popular will, and the Court here should follow the poll reporting that 90 percent of the public believes that the defendants should be pardoned or given a token punishment. Justice Handy latches onto Justice Foster's statutory purpose argument to provide the legal rationale for this result. (39)

Justice Handy concludes his opinion with two lessons drawn from his personal experience. First, he dismisses the possibility of clemency based on gossip from his wife's niece, who is a friend of the Chief Executive's secretary. (40) According to Justice Handy, he shared this information with his colleagues. This explained Chief Justice Truepenny's "flap[ping] his judicial robes" to encourage the Chief Executive to grant clemency, "[Justice] Foster's feat of levitation by which a whole library of law books was lifted from the shoulders of these defendants," and "[Justice] Keen emulat[ing] Pooh-Bah in the ancient comedy by stepping to the other side of the stage to address a few remarks to the Executive 'in my capacity as a private citizen."' (41) Second, Justice Handy compares this case to the first case he heard as a trial judge, in which he was "widely approved by the press and public opinion" for employing his common sense and avoiding the many "perplexing" legal issues raised in the case. (42)

C. THE DECIDING VOTE: JUSTICE TATTING

With the Court deadlocked, the deciding vote falls to Justice Tatting. His initial opinion is written after the first opinions to affirm (Chief Justice Truepenny) and reverse (Justice Foster). He finds himself "torn between sympathy for [the defendants] and a feeling of abhorrence and disgust at the monstrous act they committed." (43) He had hoped to be able to "put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law." (44) But he is not convinced by the arguments on either side.

Justice Tatting rejects both of Justice Foster's rationales for reversing the convictions. The question of the boundary of a state of nature is intractable, and in any event Justice Tatting is unpersuaded that the law applicable in such a state should permit the law of contracts to override the law of murder. (45) The purposive analysis is unavailing where, as here, there are several purposes served by the criminal statute (retribution and rehabilitation in addition to deterrence). (46) Moreover, the self-defense rationale is flawed because the defendants here acted willfully and deliberately in planning and executing Whetmore's killing. Justice Tatting invokes the case of Jean Claude Valjean of Les Miserables in arguing that impending starvation neither excuses Valjean's stealing of a loaf of bread nor the defendants' killing of Whetmore. (47) Justice Tatting envisions "a quagmire of hidden difficulties" if the self-defense exception is applied. (48) Justice Tatting ultimately rejects Justice Foster's arguments in favor of reversal as intellectually unsound and approaching mere rationalization. (49)

Yet Justice Tatting also is repelled at the prospect of affirming the convictions. He complains: "[T]he more I examine this case and think about it,.... [m]y mind becomes entangled in the meshes of the very nets I throw out for my own rescue. I find that almost every consideration that bears on the decision of the case is counterbalanced by an opposing consideration leading in the opposite direction." (50) After expressing regret that the prosecutor did not simply refuse to indict the defendants, Justice Tatting takes the "unprecedented" step of withdrawing from the case. (51)

After the second opinions to affirm (Justice Keen) and reverse (Justice Handy) are proffered, Chief Justice Truepenny asks Justice Tatting to reconsider. Justice Tatting declines: "[A]fter hearing these opinions I am greatly strengthened in my conviction that I ought not to participate in the decision of this case." (52) As a result, the Court is evenly divided, the convictions are affirmed, and the executions are set for April 2, 4300. (53)

II. GRUTTER v. BOLLINGER

In the not-so-distant year of 1992 in the non-mythical state of Michigan, the dean of the University of Michigan Law School charged a faculty committee with crafting a written admissions policy to implement the goals of attracting "a mix of students with varying backgrounds and experiences who will respect and learn from each other" (54) while complying with the Supreme Court's Bakke decision. (55) The policy developed by the committee, and later unanimously approved by the Law School faculty, combined an assessment of academic ability "with a flexible assessment of applicants' talents, experiences, and potential 'to contribute to the learning of those around them.'" (56) The policy directed admissions officials to consider, as predictors of academic success, the applicant's undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score. Admissions officials, however, also were directed to "look beyond grades and test scores" to other criteria that the Law School deemed important. (57) These so-called "soft" variables included "the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection. (58)

To meet its goals of achieving "that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts," (59) the policy did not restrict the type of diversity contributions that could be considered by the admissions officers. However, the admissions policy reaffirmed the Law School's commitment to "racial and ethnic diversity." (60) In particular, the Law School sought to enroll a "critical mass" of underrepresented minority applicants, "who without the Law School's commitment might not be represented in [the] student body in meaningful numbers." (61) The underrepresented groups included African-Americans, Hispanics, and Native-Americans. (62)

In 1996, Barbara Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score, applied and was denied admission to the Law School. (63) Grutter filed suit in federal district court, alleging that the Law School discriminated against her on the basis of race in violation of the Fourteenth Amendment by using race as a predominant factor in admissions. The U.S. District Court for the Eastern District of …

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Publication information: Article title: Affirmative Refraction: Grutter V. Bollinger through the Lens of the Case of the Speluncean Explorers. Contributors: Caron, Paul L. - Author, Gely, Rafael - Author. Journal title: Constitutional Commentary. Volume: 21. Issue: 1 Publication date: Spring 2004. Page number: 63+. © 1998 Constitutional Commentary, Inc. COPYRIGHT 2004 Gale Group.

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