14 June 2004

A Bad Day Down on the Farm

Most of the time, legal opinions make for awfully dull reading. Whether in substance or in rhetoric, they just fail to communicate much passion. On Friday, however, the Michigan Supreme Court issued an opinion with soundbites that shame most politicians.

[W]e observe that this opinion is short, not because we disagree with the dissent concerning the significance of this issue, but because Allen is so clearly contrary to the language of Michigan's Civil Rights Act. We are uncertain how many pages the dissent believes are required to explain that "individual" means "individual." Further, we note that in its much longer opinion, the dissent, unlike the majority, never actually bothers to decide the issue before this Court—whether Allen's "background circumstances" standard is consistent with Michigan's Civil Rights Act.

Lind v. Battle Creek, No. 122054 (Mich. Jun. 11, 2004), slip op. at 3. (PDF, 178k) There's more than one juicy soundbite, too; they're not even limited to the same side:

I do not challenge the good intentions of my dissenting colleagues; I do challenge their Orwellian racial policy preferences. (Young, J., concurring, slip add'l op. at 3)

The diversity of opinion among the federal circuits is evidence of the difficulty and complexity of this issue, yet the majority feels compelled by the text of Michigan's Civil Rights Act to dismiss this issue with no analysis of the relevant case law. The text of the act also compels Justice Young to assert that viewing things as they actually are is tantamount to discrimination. Today's majority and Justice Young both fail to acknowledge the historical context in which the Civil Rights Act was passed, as well as the pervasive and continuing discrimination rooted in that historical context. (Cavanagh, J., dissenting, slip add'l op. at 11)

It should surprise nobody that neither side's legal analysis is all that cogent; the opinions instead are written to soundbite. The dissent is correct that context does matter, especially in discrimination law, and that the majority opinion should at least have acknowledged that by stating the facts. This need not have been exhaustive; the statement of relevant critical facts in the dissent is a little over a page, and at that is flabby. On the other hand, acknowledging the importance of context is not at all the same thing as accepting its validity. In fact, that's the point of antidiscrimination law: That the status quo is often shaped by illegitimate factors that the courts are obligated to disdain. And although the references to Orwell in the concurring opinion are certainly entertaining and powerful rhetoric, and can be supported by cursory reading of Animal Farm itself, they represent a misreading of the book. Animal Farm does include different "animal races," but its subject is the corruption of seeking power, not the corruption of racism, as the closing passage of the book makes clear. The pigs have joined local farmers in the farmhouse for a game of cards after a hard day supervising the labor force:

There was the same hearty cheering as before, and the mugs were emptied to the dregs. But as the animals outside gazed at the scene, it seemed to them that some strange thing was happening. What was it that had altered in the faces of the pigs? Clover's old dim eyes flitted from one face to another. Some of them had five chins, some had four, some had three. But what was it that seemed to be melting and changing? Then, the applause having come to an end, the company took up their cards and continued the game that had been interrupted, and the animals crept silently away.

But they had not gone twenty yards when they stopped short. An uproar of voices was coming from the farmhouse. They rushed back and looked through the window again. Yes, a violent quarrel was in progress. There were shoutings, bangings on the table, sharp suspicious glances, furious denials. The source of the trouble appeared to be that Napoleon and Mr. Pilkington had each played an ace of spades simultaneously.

Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.

This is the exact opposite of the concern in the underlying case. It does not undermine the validity of the concurrence's disdain for overlegalisms; neither does it support it.