In the popular game series Assassin’s Creed, the storyline follows a fictional secret society of assassins fighting against a group of politically entrenched conspirators. Initiates to the assassin order are taught:
“Where other men blindly follow the truth,
Remember, nothing is true
Where other men are limited by morality or law,
Remember, everything is permitted.
We work in the dark to serve the light.
We are assassins.”
Assassin’s Creed II (http://youtu.be/f-q2GZisrcc?t=12m7s)
Judicial Activism vs Judicial Restraint
Recently, an article by Suzanna Sherry on judicial activism (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2213372) spurred some interesting online debate. http://www.volokh.com/2013/08/22/rejoinder-to-suzanna-sherry-on-the-case-for-judicial-activism/. Sherry argues that we need the judiciary to intervene more often because we often regret when the Supreme Court upholds unjust laws, but rarely regret overturning them. For example, in 1896 Plessy v. Ferguson upheld the oppressive “separate but equal” doctrine that was not overturned until Brown v. Board of Education nearly sixty years later.
The twin principles of the assassin’s creed serve as an amusing, if not useful backdrop to this debate. At first glance, it might appear that telling judges that “nothing is true, everything is permitted” would disrupt the careful balance consistent with the rules that govern the judiciary. But perhaps the assassins would argue that we misunderstand their creed.
Before we get to the creed, some basic principles of judicial reasoning:
First, the law itself is inherently conservative because of the principle of stare decisis. Stare decisis means “to stand by decisions.” Adeleye, Gabriel et al. World Dictionary of Foreign Expressions: a Resource for Readers and Writers, page 371 (1999). Decisions of past courts on similar cases are given great weight.
Second, we have three branches of government carefully balanced against each other. “One branch of the government cannot encroach upon the domain of another, without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.”. Ashwander v. TVA (Brandeis, J. concurring) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=297&invol=288. The judiciary should endeavor to keep itself above politics and away from the duties that belong to the other branches.
The Assassin’s Creed
‘Nothing is true, everything is permitted’ are thought to be the dying words of Hassan-i Sabbah. Sylvere Lotringer, Burroughs Live: The Collected Interviews of WIlliam S. Burroughs, 1960-1997 (New York: Semiotexte, 2001), 157 (Available on JSTOR). The creed appears at first to be a rejection of law and order, however, the game series expounds on this creed in several places. Altair Ibn-L’Ahad explains that “[t]o recognize nothing is true and everything is permitted; that laws arise not from divinity but reason. I understand now that our creed does not command us to be free. It commands us to be wise. ” Assassin’s Creed I. In a later game, Ezio de Auditore calls the creed, ‘”an observation of the nature of reality. To say, ‘nothing is true’, is to realize that the foundations of society are fragile, and that we must be the shepherds of our own civilization. To say, ‘everything is permitted’, is to understand that we are the architects of our actions, and that we must live with their consequences, whether glorious or tragic.” Assassins Creed Revelations.
First, let’s evaluate ‘nothing is true’ as a possible principle for our judicial creed. ‘Activist judges’ are reviled in popular media. However, both of the “political branches,” as they are called, are vulnerable what De Tocqueville called the “tyranny of the majority.” http://xroads.virginia.edu/~Hyper/DETOC/1_ch15.htm. Because democracies function by majority rule, there is a risk that unpopular minorities might be oppressed. To counter this problem, we give the power to the judiciary to overturn laws that are unconstitutional. De Toqueville observed: “The representative system of government has been adopted in several states of Europe . . . but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people.” Id. But the idea that a few, unelected judges can overturn a law passed by our representatives seems counter to the very idea of democracy. Generally, we want judges to respect the actions of the legislative (lawmaking) and executive (law enforcement) branches of government just as they defer to the lessons of history through the principle of stare decisis. So, the judiciary would probably reject the idea that “nothing is true.”
However, if we consider ‘nothing is true’ under Ezio’s clarifying interpretation–that society is ever changing–we could see how judges might accept that nothing is true and that, in some cases, judges must act as the “shepherds of civilization.” The Supreme Court website agrees, “[a]s the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.” http://www.supremecourt.gov/about/constitutional.aspx. So, if judges can overturn cases and even laws when they are unconstitutional, could come to the conclusion that no legal principle is immutably “true.”
We could still argue that constitution itself is “true,” but there is disagreement among judges on this point. Some argue ‘originalism’–that the constitution means whatever the founders meant when they wrote it. This approach has some appeal because it seems consistent with stare decisis and keeps judges law interpreters rather than law makers. Other judges see the constitution as a living document that was not meant to serve as the final word on the law, but to frame a continuing debate. For example, the Fourth Amendment protects us from unreasonable searches and seizures. Which leaves us with the question: which searches are unreasonable? The founders did not intend to resolve this question, but recognized that it was an important one that we would continually wrestle with.
As Chief Justice Marshall said, “[w]e must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” http://www.supremecourt.gov/about/constitutional.aspx Therefore, perhaps judges could accept that nothing is true in that, ultimately, we can take nothing for granted because our legal system is meant to adapt as society grows.
Second, we assess ‘everything is permitted.’ It is sometimes the role of the judiciary to play this unpopular role of moral voice–as when the political branches pass unconstitutional laws–but only within the bounds set by the constitution. So again, the judiciary would initially reject that “everything is permitted.” With so many rules governing when a judge may overturn a law and the few constitutional bases that it may use do so, it appears that there are many things that are not permitted.
However, if we recognize, as Ezio did, that what this really means is that we must live with the consequences of our actions or inaction, judges could accept that everything is permitted. Indeed, as Sherry argues, “when the Court fails to act–instead deferring to the elected branches–it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities.” However, as Orin Kerr observed, cases where we expect the Court to “do the right thing” more often arise when we the Court reviews old laws based on values that society at large no longer shares. http://www.volokh.com/2013/08/20/an-unhelpful-way-to-measure-the-consequences-of-striking-down-legislation-a-response-to-sherry/. As frustrating as it is to cringe as we read cases like Plessy, which upheld the principle of ‘separate but equal’ among races, sometimes society needs time to grow. Moreover, the resulting outrage from an opinion that offends our sense of morality can spur enough attention that we change the law through the political process.
Another way to look at this difficulty is through the adage, “good facts make bad law.” As a matter of basic strategy, when you challenge a law, you find the most sympathetic person you can who has been harmed by it. This often places the judge in the uncomfortable position of choosing between getting the case right or getting the law right. A favorable outcome for one individual may negatively impact future cases. In the end, judges can find a way to intervene and must live with the consequences of their intervention or deference. As Altair put it, the creed’s assertion that ‘everything is permitted’ commands them not to be free, but to be wise. Assassin’s Creed I, supra.
The Judicial Creed
Properly understood through its evolution through the assassin’s creed series, “nothing is true, everything is permitted” starts to appear appropriate as a judicial creed. Judges cannot accept anything as given because the law is designed to change and grow along with society. This evolutionary process is balanced against the respect for history instilled by the doctrine of stare decisis which makes this change slow–but hopefully more thoughtful. The weight of history often falls on our courts and especially the Supreme Court because they–and we–must live with their decisions. As Justice Robert H. Jackson put it, “[w]e are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen.
Judges must therefore carefully balance restraint with safeguarding the principles of our Constitution. Putting one’s thumb on the scale towards more intervention seems unwise even when, in hindsight, we look back and cringe. Nevertheless, nothing is true, everything is permitted.
*NOTE: nothing in this blog or this post should be considered legal advice. Consult a lawyer.