"On February 23, 1994 at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendent, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction. Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die."
--Justice Harry Blackmun, in Callins v. Collins, No. 93-7054, cert. denied, February 22, 1994
"Justice Blackmun begins his statement by describing with
poignancy the death of a convicted murderer by lethal injection. He
chooses, as the case in which to make that statement, one of the
less brutal of the murders that regularly come before us--the
murder of a man ripped by a bullet suddenly and unexpectedly, with
no opportunity to prepare himself and his affairs, and left to
bleed to death on the floor of a tavern. The death-by-injection
which Justice Blackmun describes looks pretty desirable next to
that. It looks even better next to some of the other cases
currently before us which Justice Blackmun did not select as the
vehicle for his announcement that the death penalty is always
unconstitutional--for example, the case of the 11-year-old girl
raped by four men and then killed by stuffing her panties down her
throat....How enviable a quiet death by lethal injection compared
--Justice Antonin Scalia
Most people are familiar with the stand-up comic's rejoinder when a dog outside the club begins howling: "Everybody's a critic." In the exchange quoted above, Justices Blackmun and Scalia reveal a slight alteration to this quip, one that is among the most significant changes culture has undergone in the last half of the 20th century: These days, everybody's a playwright.
But the plays that everyone is writing are not fiction, or not formally fiction. Justices Blackmun and Scalia are not making anything up in their deadly serious debate. Rather, they are telling the truth, but telling it with a particular style, the dramatic style that fiction makers have long used. Like playwrights, both justices are ordering and honing highly emotional details into a pattern they find satisfying. But unlike playwrights, they are arguing public policy using the lives of very real people.
There is certainly precedent for using stories in public discussion, from the hair-raising tales that prompted the Salem witch trials through Uncle Tom's Cabin. But today, this kind of hyperdramatizing is just about the only way we can conduct our debate about public issues. And we have adopted the dramatic style so thoroughly that we don't recognize it as a style, one among many in which public debate may be conducted. News, both on television and in print, is increasingly driven by dramatic anecdotes full of personal pathos and anguish, righteous justice, and deepest concern. What information there is in modern news is secondary to grand tragedy, fear, social paranoia, tender sympathy, whimsy, lust, and madness.
That is not to suggest that drama does not exist in real life. Bruce Callins was a very real person, and the state of Texas's method of carrying out its death penalty is far from imaginary. Justice Blackmun is just stating real, verifiable facts. But so is Justice Scalia, who accurately relates Callins's crime and the brutal and pitiless rape and murder of that young girl. Each justice's skill at telling the story he finds most convincing demonstrates what becomes of information in the dramatic style. A necessary byproduct of drama, and sometimes its entire purpose, is to influence the way facts are seen. Drama may be used to color facts, and sometimes obscure them. But as we let the pleasure we get from storytelling overshadow what is significant about particular facts, it becomes harder and harder to arrive at a reasonable interpretation of information.
Look what happens to the facts in Callins v. Collins. Justices Blackmun and Scalia are engaged in an argument over something tremendously important: the morality and propriety of the death penalty. But their debate devolves into trading images of anguish and torment. That emotionalism is the centerpiece of the dramatic style. The justices are wrestling with the practical effects of philosophy as it works itself out in public policy, but as the focus turns emotional and personal, philosophy and public policy fade into the distance. We begin to care about (and are meant to care about) the people whose stories are being described.
Once Justice Blackmun invokes the suffering of Bruce Callins, Justice Scalia has to respond in kind. Drama can only be answered by drama. Sufficiently pathetic imagery is like steroids in sports--once one competitor indulges, competition becomes meaningless unless all competitors join in. Scalia cannot adequately answer Blackmun's highly specific imagery simply by referring to the more dispassionate kinds of logic Supreme Court opinions normally utilize: such arguments as the Constitution's apparent acceptance of the death penalty, the reasonably clear intent of the Constitution's drafters, and public opinion polls that show a large majority of Americans continue to support that ultimate punishment. Logic is not where the argument is any more. Blackmun moves the argument away from abstractions and into the arena of the personal, the individual, the pathetic. Scalia can respond only on those terms.
In this case, as in most, the drama is in the details: Each justice summons highly specific facts he believes support the intellectual argument he finds convincing and leaves out or minimizes others. Blackmun's opening would do well in a movie, with its insistently precise focus. ("On February 23, 1994 at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas...") Then, like any competent dramatist, he tweaks our sympathy, in this case narrating the way Callins will be erased from memory while the machine grinds on. ("Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die.") Any fiction writer will recognize that this is good dramatic composition.
Scalia's command of dramatic style is no less astute. He gives us the details at the other end of a crime--provoking us with verbs and adverbs loaded with passion ("ripped by a bullet suddenly and unexpectedly") and facts guaranteed to evoke compassion (the image of the dead man, left bleeding to death on the floor of that tavern). Further, Scalia's use of understatement is a nicely chosen device to heighten the dramatic effect. ("He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us.")
The facts in Callins v. Collins are not particularly unusual in their drama. Just about all cases that make it into the courts involve human injury, conflicting opinions and passions, heated disputes; and the drama is usually most intense in criminal cases. Movies and plays have long exploited the drama inherent in a trial.
Further, the Constitution itself requires a story. No federal court can decide a legal matter unless there is a case or controversy--an actual situation in which some injury has occurred to an identifiable person, or, at the very least, is immediately imminent. Federal courts (and many state courts) cannot issue advisory opinions that merely examine the law as a generalized prospect. Legal issues must be decided based on a given set of facts. Thus, before a court engages in legal analysis, it will most often begin by reciting those facts--the story.
But the Constitution does not require a dramatic story. Callins v. Collins illustrates how the dramatic style becomes something of an end in itself, heightening passions but resolving nothing. Compare the following statement of the facts, which more fairly represents the way a court deals with the facts of a case, to the ones Justices Blackmun and Scalia wrote. It is from Brown v. Board of Education (which consolidated several individual cases), reversing Plessy v. Ferguson:
"In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases, other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called 'separate but equal' doctrine announced by this Court in Plessy v. Ferguson."