By Dr. Ken Broda Bahm:
The notion of rule of law has taken a beating recently. The outcry from those opposed to the Supreme Court decision on healthcare — in many ways a flip side of the reaction that occurred in response to the Bush v. Gore decision that ended the 2000 presidential election recount — reflects a tendency to treat legal decisions as “political” (in the sense of “partisan”) when one disagrees with their result. In the runup to Thursday’s decision, fully 55 percent believed that Supreme Court Justices would decide the healthcare litigation based on personal or political beliefs, compared to just 32 percent who said it would be based on legal analysis.
In truth, the Court could not have made a decision without one side or the other claiming that politics motivated it. These reactions, both the ones based on the decision, as well as those we would have seen had it gone the other way, point to a skepticism toward the rule of law. Reading the decision and the oral arguments confirms that it is a legal analysis. Maybe it’s driven by a legal philosophy resting on political foundations, but it is a legal analysis all the same. Commentary following the decision, especially focusing on the surprising role of Chief Justice Roberts, hasn’t seen it that way. For example, the Governor of Louisiana suspects that Roberts might be pandering to the newspapers, and there is a wealth of other speculation on the Chief Justice’s various political motives. Maybe there was once a golden age in this country when legal decisions were credible by default and respected based on the institution and the neutrality of the process. But it is safe to say, that we’re no longer in that age, if we ever were. The reaction to the Court’s decision underscores a lesson that all trial lawyers should take into account: You can’t presume an automatic trust in the law. This post looks at some of the practical implications of this skepticism as they relate to the willingness of jurors and observers to “follow the law” in the case, and to the potential for jury nullification.
Transitioning from the Court’s controversial healthcare decision to the more practical realities of trial work, we can point to a few important reminders.
1. Know the Legitimacy of the Law You’re Using
Recently, one of the attorneys in our firm participated in a program at the Denver City Attorney’s office allowing litigation associates to gain practical experience in trial. In his first jury selection in a marijuana possession trial, he innocently asked if anyone on the panel would have trouble enforcing the laws against possession of the drug. Nearly two-thirds of the hands on the panel went up. The legitimacy of marijuana laws is changing rapidly — especially in Colorado where there are literally more medical marijuana dispensaries than Starbucks. But that same skepticism can attach to nearly any law depending on your audience. To some of the Tea Party persuasion, for example, nearly every law limiting the freedom of a business owner (nondiscrimination, environmental protection, and of course taxation) is similarly suspect.
2. Know the Most Likely Process for Nullification
In its most extreme form, “jury nullification” refers to the process of a jury consciously deciding to set aside the law in deciding its verdict. According to research that University of Nebraska-Lincoln Psychology Professor Brian Bornstein discussed recently in
Psychology Today, however, today that isn’t the most likely way that nullification will occur. Using a Kevorkian-like scenario in which a doctor deliberately gave a fatal dose of anesthetic to a terminally ill patient, Bornstein found that no mock jurors acquited the physician when they understood the charges and believed the prosecution had proven its case. Plenty, however, acquited based on an incomplete understanding of the law or a belief that the evidence was not strong enough. While true nullification might be, as Bornstein describes it, a “low base-rate event,” it seems likely that it occurs far more often through less direct means. “Nullification through
motivated reasoning” in this case might occur when someone who doesn’t want a given law to apply simply becomes much more interested in burden of proof than they would otherwise be. The implications for litigators are, first, not to necessarily trust a simple declaration that one will “
follow the law,” and second, to explicitly address a juror’s possible reluctance to apply the law and, if possible, reframe their act as something more positive. For example, for the Tea Party supporter, the reasons to avoid discrimination might relate more to “it is personal responsibility” rather than, “it’s the law.”
3. Don’t Expect Empathy for the Other Side of the Aisle
This month’s
The Jury Expert features a research article that confirms something we all suspect, and takes it to an entirely new level. The study, O’Brien and Ellsworth’s piece, “Polar Opposites: Empathy Does not Extend Across the Political Aisle,” shows that we don’t tend to apply a shared sense of our own visceral states, like cold or thirst, to individuals with different fundamental political beliefs. This demonstrates not only a gulf in understanding between those on opposite ends of the political spectrum, but also a more basic lack of empathy. Even if you have a shared perception,
according to Ed O’Brien of the University of Michigan, “you may not let that connection affect your opinions of people who are very, very different from you.” This has implications for a juror’s perception of your case, your witnesses, and for the basic values that underlie your case narrative. As I ask in a response to the article in
T.J.E., if political differences deny a shared perception of such basic states as cold and thirst, to what extent will they also influence all of the subtle factors that matter to those who study and practice legal persuasion? The differing reactions to the Supreme Court decision is a timely reminder that political orientation is more important in persuasion than it has ever been before.
As it dawned on us all Thursday morning that healthcare reform would live another day, those decrying the “politically motivated giveaway of our basic freedoms” simply could not understand the high-fives being exchanged by others over the “principled decision to preserve the legislature’s right to improve the basic decency of our society.” And vice versa. Bridging the gap has always been the persuader’s job, and these days, it seems like that is getting harder.
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Other Posts on the Supreme Court Healthcare Arguments:
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Image Credit: Bobosh_t, Flickr Creative Commons
